Sitting of 11 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.

Tributes to the late Donald Dewar MSP
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I am sure that many noble Lords were deeply saddened, as was I, to hear the news this lunchtime of the death of Donald Dewar, the First Minister of Scotland. Donald was often recently called the father of his nation and he will always be remembered as the Secretary of State who brought the historic devolution settlement to Scotland.
Donald's great love of Scotland made it fitting that he should have been the first First Minister. He was a great politician, a loyal and trusted colleague and a good and kind friend. I know that his many close friends in all parts of this House will feel particularly sad today and will be among those who remember what a pleasure it was to be with him, to work with him and to enjoy his wonderful sense of humour.
Many tributes will be paid to Donald Dewar in the next few days but I am sure that at this moment all noble Lords will wish to join me in sending our very special sympathy and deep condolences to his family.
Lord Strathclyde: My Lords, it is with great sadness and regret that I join the noble Baroness the Leader of the House in paying tribute to Donald Dewar. Like many others in the House, when I heard the news last night I wondered how it would all end. It has ended tragically.
Donald Dewar leaves a long shadow of political service behind him. It was a life of service not only to the Labour Party but also to Parliament. He was truly a titan, not only of Scottish politics but of politics throughout the United Kingdom.
It is my belief that, unusually for a serving politician at Westminster, he almost had more friends in this House than he did in the House of Commons. I need only turn to my noble friend Lord Mackay of Ardbrecknish, with whom he was at university, to recognise that that friendship transcended the usual political boundaries. He was a man of intelligence and integrity. As the noble Baroness said, he had a tremendous sense of humour and was a great debater and hard worker. Those are the values which will be missed most in the months and years ahead.
I join the noble Baroness in giving our thoughts and prayers to his family at this sad time. To those who take on his mantle in Scotland, we hope that his approach of common sense and decency, and the desire to bind together the United Kingdom, will not be lost.
Baroness Williams of Crosby: My Lords, perhaps we, too, on these Benches may pay our tribute to Donald Dewar and say how profoundly we regret his passing. He passes into history as the first First Minister of Scotland. No one can take that away from him. It is a great milestone. We worked and co-operated with his government of Scotland and can say that he made an excellent start in the experiment on devolution in that country and that many people recognise his outstanding achievements after only a short time.
At a time when it is all too popular in the media and elsewhere to denigrate the profession of politics, Donald Dewar stands as a man of unquestioned integrity, of real goodness and of excellence and conscientiousness in his service to the people of Scotland and more widely to the people of the United Kingdom. We join the Leader of the House and the Leader of the Opposition in expressing our profound and deep regret at his passing, and we extend our great sympathy to his family.
The Lord Bishop of Hereford: My Lords, perhaps we on these Benches may add to the tributes to a good and upright man. He was a most distinguished politician who served the United Kingdom, in particular Scotland, with great distinction. We add our prayers for him and for his family.
Lord Craig of Radley: My Lords, perhaps I may associate noble Lords on these Benches with the words of praise and tribute to Donald Dewar. His name will go down in the history books. We shall miss him, and we extend to his family our most sincere condolences.
Lord Mackay of Ardbrecknish: My Lords, perhaps I may say a few words not only on behalf of myself but of others in this House who perhaps cannot speak today but who were with Donald at Glasgow University some 40 years ago. I refer, first, to the noble and learned Lord the Lord Chancellor, to the noble Baronesses, Lady Ramsay of Cartvale and Lady Smith of Gilmorehill, and to the noble Lord, Lord Gordon of Strathblane. Your Lordships may think that the Scots have taken you over! Perhaps I may add the noble Lord, Lord Elder, who although he was not with us 40 years ago was a close associate of Donald's in their political life.
All those years ago Donald was a great debater. We all thought that we were great debaters, but Donald was certainly one of the best. We had terrific debates in the Glasgow University Union and one thinks of them on a day such as this. In particular, we had debates and arguments in Donald's basement flat in the house his parents owned near the university. Goodness knows what his parents thought about all those young people who argued and turned night into day. We were all extraordinarily envious of his basement flat because none of us was so privileged.
Donald and I had fairly chequered political careers; we lost some seats and we won some seats. The decency of the man came through to me, which perhaps I can share with your Lordships, when he was shadow social

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security spokesman and I was Minister of State at the Department of Social Security. We met at one of the great think-tank meetings which the department occasionally holds and then went off to take part in a radio programme. In the car he said to me, "Do you know, we have both done well and I am so pleased that out of your problems of losing your seat and one thing and another you have got to the House of Lords and you are now a Minister of State". That illustrated the decency of the man.
I was able to reciprocate after the 1997 election when I told him that I was pleased he had become a Cabinet Minister and, later, Scotland's First Minister. On the way to a buffet lunch on the day of the opening of the Scottish Parliament—that was appropriate because at university Donald was known, very affectionately, and for very obvious reasons, as "the gannet"—I recall saying to him, "I may not like this experiment, but if anybody has to lead it, I am confident that you will be able to do it well".
The Scottish Parliament and people have today, in Donald's death, lost a great public servant. His passing is a great blow to the Scottish Parliament, his family and those who were his friends. But I should not go on too long because I can almost hear him snorting in the background and saying, "John, for goodness' sake, stop all this nonsense".
In the preface to a book of speeches by one of our other university contemporaries, John Smith, Donald wrote:
"We are not put on this earth to enjoy ourselves".
That may sound a very Presbyterian statement, but I can assure noble Lords that it is not so. Donald enjoyed himself, and we enjoyed having him.

Asylum Seekers: Human Rights
2.44 p.m.
Lord Lester of Herne Hill Lord Lester of Herne Hill asked Her Majesty's Government:
What steps they will take to remove the legal uncertainty for asylum seekers and would-be immigrants created by the Immigration and Asylum Act 1999, the Immigration and Asylum Appeals (Notices) Regulations 2000 and the Immigration and Asylum Act 1999 (Commencement No. 6 Transitional and Consequential Provisions) Order 2000 to avoid any risk that they may breach the European Convention on Human Rights.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I do not believe that this legislation has any uncertainty. If someone wishes to claim that he should be allowed to stay in this country because of the Government's obligations under the European Convention on Human Rights he can do so. Any such claim will be
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properly considered. If it is refused the person has a right of appeal under the provisions introduced by the legislation.
Lord Lester of Herne Hill: My Lords, I thank the Minister for that reply. In order that noble Lords can understand what this Question is about, I have placed in the Library copies of the decision of the Immigration Appeal Tribunal last Friday, a letter sent by me on Monday to the Home Secretary and a letter that I received today from the Deputy President of the Immigration Appeal Tribunal, Mr Mark Ockelton. As regards the absence of any warning to the Immigration Appeal Tribunal adjudicators that they were not intended to be empowered to protect human rights in appeals against decisions taken before 2nd October, is the Minister aware that the Home Office's version of events is at variance with that of the judges? In the words of the Deputy President,
"The terms of the Commencement (No. 6) Order were a surprise to the judicial and administrative members of the [tribunal]. Administrative arrangements had been made on the assumption that all cases heard after 2nd October would be"—
Noble Lords: Order, order!
Lord Lester of Herne Hill: My Lords, I need to read this in order that noble Lords understand the position. First, is the noble Lord aware that there is a sharp disagreement on that matter? The adjudicators say that they were not consulted. Secondly, does the Minister in reply intend to give the assurances that the Immigration Appeal Tribunal demanded of the Home Office during the appeal on Friday? Will he confirm that those who come before adjudicators or the tribunal are properly informed by the Home Office of their right of appeal?
Baroness Jay of Paddington: My Lords, I am sure that my noble friend will attempt to answer the points raised by the noble Lord, Lord Lester of Herne Hill. However, in view of the length of the Question I wonder whether this is perhaps a more appropriate subject for a debate or Unstarred Question.
Lord Lester of Herne Hill: My Lords, perhaps I should explain to the Leader of the House that I wrote to the Home Secretary—
Noble Lords: Order, order!
Lord Bassam of Brighton: My Lords, I have some sympathy for the noble Lord: it is, after all, a complex issue. As to the points that have been raised, I am more than happy for the helpful dialogue between the noble Lord and the Home Office to continue. The noble Lord is right in that in this matter there appears to be a difference of opinion between the tribunal and the understanding of the Home Office. We must study this very complex matter carefully. Above all, it is the intention of the Government to ensure that people fully understand and enjoy their human rights.
Lord Archer of Sandwell: My Lords, does my noble friend appreciate that for the past 35 years since

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ratification of the European convention the rights set out in the Human Rights Act have been acknowledged by this country as something by which it is bound? Can my noble friend assure the House that those who have been denied the opportunity to raise these issues at an earlier stage will not be precluded from doing so before the immigration authorities when the question arises of their return to their own countries?
Lord Bassam of Brighton: My Lords, I would have thought that from the recent launch of the human rights awareness campaign it was patently clear that the Government are profoundly committed to ensuring that people are made fully aware of those rights. We have a proud record and tradition and the Government are more than happy to stand by it.
The Lord Bishop of Portsmouth: My Lords, the question is indeed complex. Having read the briefing, this matter goes beyond the bounds of the present proceedings. However, I believe that there is a case for asking the Government to place under ever closer scrutiny the just practices and fair procedures for appeals, in recognition of the fact that appeals are for the benefit of appellants as well as the rest of the community. On the day that we give thanks for Donald Dewar I am proud to wear a Celtic cross around my neck. Once upon a time the Scots and Irish were asylum seekers. Will the Government press for the abolition of the emotive term "asylum seeker" and use the more neutral, and humanitarian, word "refugee"?
Lord Bassam of Brighton: My Lords, we deal with the law as it is and use the terms "asylum seeker" as well as "refugee". The right reverend Prelate is right to say that the subject is very complex. We shall endeavour to ensure that there is a common understanding of decisions made by the tribunal in these matters. We shall do all that we can to ensure that people are made fully aware of their rights.
Lord Cope of Berkeley: My Lords, I, too, have had the advantage of sight of the correspondence on this extremely complex matter. Am I correct in thinking that the result of the Government's decision and the orders mentioned in the Question is that there will need to be two hearings on disputed cases? How does that square with everyone's aim to speed up the immigration and asylum process?
Lord Bassam of Brighton: My Lords, there may be cases where there will need to be two hearings. But with the new orders we have provided for a one-stop appeals process. That will not preclude people from making a human rights claim.
Baroness Williams of Crosby: My Lords, following the remarks made by the noble Lord, Lord Cope, perhaps I may press the Minister further. He will be aware that the refugee legal centre believes that this will double the backlog of appeals. Can he therefore assure the House that those who are subject to removal
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or to having their extended leave to enter refused should be informed of their rights so that the matter can be dealt with at one and the same time? In that way the problem to which the noble Lord referred could be avoided to the benefit of the whole community.
Lord Bassam of Brighton: My Lords, the Government have acted rapidly over the past year to ensure that the whole backlog issue is dealt with. The matter has been tackled. The backlog of cases is now down to 76,000 from 102,000 at the beginning of the year. Part IV of the Act introduces the one-stop appeals procedure. That should speed up matters and ensure that where appropriate the two sets of issues can be considered together.
Lord Renton: My Lords, having supported—
Lord Lester of Herne Hill: My Lords, perhaps I may—
Noble Lords: Order!
Baroness Jay of Paddington: My Lords, I think the feeling of the House is that the noble Lord, Lord Renton, should ask a question.
Lord Renton: My Lords, having supported the Government in their introduction of the European Convention on Human Rights into our law and the work of our courts, perhaps I may ask the Minister whether he agrees that, when there is a conflict or apparent conflict between our law and a convention but a doubt as to the effect of the convention, that doubt should be resolved in favour of our law.
Lord Bassam of Brighton: My Lords, it has been a long-standing tradition that we abide by convention rights. We have a long and proud history of so doing. But finally and ultimately it is for Parliament to make law and to ensure that the laws of the country are properly put in place.

Euro: Economic Tests for UK Entry
2.53 p.m.
Lord Taverne Lord Taverne asked Her Majesty's Government:
Whether they will publish at six-monthly intervals an assessment of progress towards meeting the five tests laid down for deciding whether the United Kingdom should join the euro zone.
Lord McIntosh of Haringey: My Lords, the Chancellor of the Exchequer has said that we will make another assessment of the five economic tests early in the next Parliament.
Lord Taverne: My Lords, I hope the Government will treat this as a constructive suggestion and not entrench themselves further in the usual positions. The Government have announced that the five conditions

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are extremely important. Does it not follow that if the Government want an informed and reasonable debate on the whole question it would be of great assistance to have from time to time a public assessment of progress in meeting the five tests? Furthermore, do the Government agree that it would be quite wrong for a judgment on whether conditions were favourable for entry into the euro—which the Government say in principle they desire—to be kept within the Treasury? Does that not reinforce the case for regular public assessment of the state of convergence between the UK economy and the euro-zone economies?
Lord McIntosh of Haringey: My Lords, the noble Lord has chosen in his Question to concentrate on one particular conclusion in a very constructive and helpful report from Christopher Huhne and his colleagues. It is made nonetheless constructive by the fact that the noble Lord, Lord Taverne, was a member of the group that produced it. In saying that the report was constructive and helpful, we do not have to agree with every part of it. We have never taken the view—we do not take the view now—that continually to dip into the pot to decide whether or not the tests apply at this time would be at all helpful.
Lord Hoyle: My Lords, will my noble friend confirm that the five tests must be met before any recommendation to join is made? Will he also confirm that the final decision will be made by the British people in the form of a referendum?
Lord McIntosh of Haringey: My Lords, I can certainly confirm both points raised by my noble friend. I have confirmed them in the words of the Chancellor in 1997 and the Prime Minister in 1999. I can confirm them again in the words of the Prime Minister at Warsaw last week. He said:
"It is an economic union. Joining prematurely simply on political grounds, without the economic conditions being right, would be a mistake."
Hence our position—in principle, in favour; in practice, the economic test must be met.
Lord Lamont of Lerwick: My Lords, will the Minister not put the noble Lord, Lord Taverne, out of his misery and tell him that the five tests are completely meaningless and entirely a matter of judgment; and that the real test that matters is of course the sixth test? That is published not just six-monthly, but monthly in the opinion poll Attitudes Towards the Euro; and alas that ain't becoming convergent.
Lord McIntosh of Haringey: My Lords, I rather thought that the noble Lord, Lord Lamont, in referring to the sixth test was referring to the same six tests to which the noble Lord, Lord Taverne, was referring. The Liberal Democrats think that the sixth test is actually the exchange rate. The economic tests are the right tests for the Government to make up their own mind and to make a recommendation to
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Parliament and to the United Kingdom. It is up to us to persuade the people of the United Kingdom of the correctness of the conclusion that we reach.
Lord Barnett: My Lords, will my noble friend ignore the customary remark from the noble Lord, Lord Lamont, which tends to be both irrelevant to the major issue and irrational? But will he accept that most of the economic tests have already been met or are likely to be met, other than the main one; namely, the problem of convergence of currency rates? Have the Government considered negotiating the question of whether or not it would be possible on joining—which I hope we shall—to negotiate a lower rate for the UK?
Lord McIntosh of Haringey: My Lords, I would never have the temerity to ignore what the noble Lord, Lord Lamont, says, even if I occasionally, but not always, disagree with him. As to whether the exchange rate is the sixth test, the exchange rate is in great part the result of the conclusion of the five economic tests. Exchange rates are not determined by fiat, by diktat or by passing laws in this country.
Lord Saatchi: My Lords, I hesitate to draw attention to even the smallest defect in the Minister's performance, but I am sure that he will agree that one of the alleged perils of joining the euro that is not dealt with in the five tests is the impact of tax harmonisation. In that context, perhaps I may remind him of what he said:
"The fact is that taxes are falling".
The noble Lord, Lord Kingsland, asked whether the noble Lord could justify that figure. In reply he said:
"Yes, my Lords. I shall do so in a considered letter which I shall send to all noble Lords who have taken part in the debate. I shall also place the letter in the Library of the House".—[Official Report, 28/7/00; col. 758.]
That was two and a half months ago. When will such a letter be put in the post?
Lord McIntosh of Haringey: My Lords, I am grateful for that reminder. I was offered a draft of such a letter this morning. I rejected it as being totally inadequate. I shall ensure that a proper answer is given to the noble Lord, Lord Kingsland, and other noble Lords who took part in the debate.
Lord Shore of Stepney: My Lords, my noble friend has already tried to give an answer to the noble Lord, Lord Lamont, and, frankly, he has not been very convincing. How does my noble friend explain the fact that virtually every political leader in Europe, the Governor of the Bank of England only last month and the President of the European Central Bank have all expressed the view that the single currency is primarily about political union? How can the Government and my noble friend go on with this absurd pretence that it is simply a matter of economic calculation?
Lord McIntosh of Haringey: My Lords, we have always said that political and constitutional issues are involved in this decision. Clearly, whenever

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sovereignty is pooled, constitutional issues are involved. But we have taken the view, and still take the view, that in the interests of this country the economic criteria must be paramount and that the other issues are subordinate to that and can be resolved. We have not deviated from that view.

Litter
3 p.m.
Lord Hardy of Wath Lord Hardy of Wath asked Her Majesty's Government:
Whether existing legislation is sufficient to deal with the problem of litter.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, current legislation is contained in Part IV of the Environmental Protection Act 1990. That legislation requires litter authorities to keep their areas free from litter and provides sufficient flexibility for local authorities to take action against those who drop litter. We therefore have no current plans to review the litter legislation.
Lord Hardy of Wath: My Lords, does my noble friend agree that the dumping of litter is now the most common offence committed in this country, that the provisions of existing legislation scarcely seem effective and that the number of fines for offences is extraordinarily low? Is it not obvious that the amount of litter deposited in many parts of the country today is so squalid and perhaps harmful as to require a much firmer approach to be adopted?
Lord Whitty: My Lords, the existing legislation gives several powers to local authorities to enforce litter-free areas. The fixed penalty is £25. If that penalty is not paid, the fine can be as much as £2,500. For more serious offences such as fly-tipping, there are very substantial penalties indeed. It is true, as my noble friend implied, that performance in different areas is not uniformly good. The newly instituted regime of best value will require local authorities to improve their performance where they are falling down on this issue. However, I should also say that, according to the index of the Tidy Britain Group, there has been some improvement in recent years in many areas of our country.
Baroness Sharples: My Lords, does the noble Lord agree that education rather than extra legislation is very important in this matter?
Lord Whitty: My Lords, I agree with the noble Baroness. There is certainly a need to ensure that the coming generations understand the importance of not dropping litter and how dropping litter affects the quality of their neighbourhood. Therefore, in broad terms, I agree with the noble Baroness.
Lord Marlesford: My Lords, as the present system clearly does not work very well, will the Government consider using the Countryside and Rights of Way Bill to introduce an obligation on parish councils to ensure that the areas within their boundaries are kept clean? Those parish councils would then be able to use their own rates, which are raised from their own people, to fulfil that obligation. Does the noble Lord agree that if that were done the local people, who would otherwise have to pay, would probably be much more effective watchdogs than they are at present?
Lord Whitty: My Lords, I do not think it would be appropriate for the main responsibility for litter management and street cleansing to rest with parish councils, although they may have some role in those areas. The job of cleansing our streets and ensuring that litter regulations are enforced rests primarily with the full local authority. I am not saying that parish councils should have no role, but the prime responsibility in legislation should remain with the local authority.
Lord Redesdale: My Lords, can the noble Lord say whether fly-tipping has increased since the introduction of the landfill tax? If that is the case, will the Government take further measures against building companies which increase their amount of fly-tipping?
Lord Whitty: My Lords, there is evidence that in some parts of the country fly-tipping has increased—whether or not as a direct result of the landfill regulations and taxation system. The penalties in relation to fly-tipping are already fairly draconian. The maximum penalty is £20,000 and there can be imprisonment in certain bad contexts. So the penalties are available; the issue is catching fly-tippers and the courts imposing substantial penalties up to the maximum.
Lord Rotherwick: My Lords, following the introduction of the landfill tax, one problem has been an increase in the number of burnt-out, abandoned cars. What will the noble Lord do to encourage local authorities to catch those responsible for burnt-out, abandoned cars?
Lord Whitty: My Lords, I am aware that there have been significant recent increases in the number of abandoned cars. Those have arisen because businesses now charge for the removal and scrapping of vehicles and because of the low price of scrap metal. The police and local authorities have powers in that respect and it is important that they use those powers. A number of local authorities have engaged in blitzes on abandoned vehicles within their territory. However, I would accept that it is a growing problem and would hope that the regimes which local authorities are increasingly introducing will help to restrict it.

European Parliament: Second Chamber
3.6 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
How they intend to consult Parliament on the proposal for a European second chamber drawn from national parliaments, floated by the Prime Minister in his speech in Warsaw on 6th October.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, by floating the proposal for a second chamber of the European Parliament, the Prime Minister intended to launch a debate, not set a blue-print, on how to reconnect national Parliaments to EU decision making. We are sure that this debate will be as vigorous here in Westminster as anywhere else. Indeed, the European Union Select Committee addressed this issue with the Minister for Europe only yesterday.
This is a proposal for the longer term. In the mean time, our door is open, and we warmly welcome contributions from all parliamentarians.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that reply. Is she aware that some Members of this House and of the other place will be going to the next meeting of the Conference of European Scrutiny Committees—COSAC—next Sunday and will no doubt be asked what the Prime Minister meant by that? If we do not know what the Prime Minister meant by that, we may not be able to give very intelligent answers to our colleagues. Is she further aware that there are Members in both Houses with some experience of managing "double hatting" of European assemblies, both positive experience and negative experience, and that it might be sensible to call on them to give their advice? Does the Minister agree that if this proposal is intended to strengthen the role of national Parliaments at the European level, it is extremely important to carry members of national Parliaments, including this one, with the Government, including, in particular, senior members of parties not currently in government?
Baroness Scotland of Asthal: My Lords, I certainly agree with the latter comments of the noble Lord. I re-emphasise what I said in my first Answer: the Prime Minister intended to launch a debate on this subject and did so. We welcome contributions from all parliamentarians, particularly those who have had experience of "double hatting" in the past. It is a longer-term proposal. The next IGC is not likely until the middle of the next decade. The primary purpose is to reconnect national Parliaments with decision making in Europe, especially in the new areas of Europe—defence, crime and so on. We need to reflect on the details. Our inclination is that such a chamber would be small. But we are starting a process of dialogue. I know from debates in this House and in the other place that that dialogue will be vigorous, intense and well-informed.
Lord Ponsonby of Shulbrede: My Lords, as my noble friend said, the Prime Minister intended to launch a debate rather than set a blue-print. But there is an example of a blue-print that is up and running now. I refer to the Parliamentary Assembly of the Western European Union. The great strength of that Parliamentary Assembly is that it brings in members from outside the European Union and from outside NATO as well. Those parliamentarians take part in a vigorous debate on defence matters. Does my noble friend see the Parliamentary Assembly of the WEU as a possible blue-print for a second chamber?
Baroness Scotland of Asthal: My Lords, I agree that the WEU plays an extremely valuable role, but a second chamber is proposed for the medium term. For the moment, we are not proposing any change to the WEU assembly which, as my noble friend has rightly pointed out, undertakes very valuable work. This proposal is intended to open up discussion. Obviously we shall examine all the models that are already in place with a view to taking decisions on which new models to adopt which could take advantage of the best of the established systems.
Lord Marsh: My Lords, does the Minister believe that the European Parliament, as currently constituted, is an excellent example for parliamentarians everywhere?
Baroness Scotland of Asthal: My Lords, I would certainly state that the European Parliament is a parliament of great value.
Lord Inglewood: My Lords, in bringing forward this proposal, has the Prime Minister secured support from specific leading parliamentarians in other member states, or is this simply an initiative of his own?
Baroness Scotland of Asthal: My Lords, this issue has been widely debated. The Prime Minister is spearheading a view that has been expressed by others and is shared by him. It is an important debate. That is because one of the issues that we must address is whether parliamentarians in nation states are as fully engaged in this process as they should be. We are examining the proposal as an option for the future.
Lord Tomlinson: My Lords—
Lord Bruce of Donington: My Lords—
Lord Carter: My Lords, I believe that my noble friend Lord Tomlinson rose to speak first.
Lord Tomlinson: My Lords, does my noble friend agree that, if the objective of this proposal is to reconnect national parliaments with the process of decision-making in Europe, a number of actions should be taken in the short term, as well as possibly considering what should be done in the long term? That should include the need to keep parliaments better informed as regards what is happening in

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Europe. They should be involved far more in pre-legislative and well as post-legislative decisions on European issues. Does she further agree that, as a result, the national parliaments would then not feel so detached and the need for such a second chamber would diminish?
Baroness Scotland of Asthal: My Lords, I understand the import of my noble friend's view. He is right to point out that we are seeking ways in which to reconnect parliamentarians. His view is one that has been strongly expressed and listened to by the Government on several occasions.
Lord Howell of Guildford: My Lords, we on this side of the House are strongly in favour of all measures to involve national parliaments more intimately in calling the European institutions to account. However, is the noble Baroness aware that this idea is not only not new—it has been suggested many times before—but that in fact it has been tried out before? That took place in the early 1990s when the decision was taken to experiment with the establishment of a European assizes, or assises. That took place in Rome. I have to tell the noble Baroness that it was a pretty good disaster. Surely we need to concentrate on finding the means by which your Lordships' House and the other place can further develop their already excellent machinery—that is particularly the case as regards your Lordships' House—for scrutinising and holding to account Community instruments? Is not this an area in which a great deal more could be done? Furthermore, would that not be far more in line with helping the nation states and their peoples to relate to the European Union rather than by inventing another airy-fairy central institution?
Baroness Scotland of Asthal: My Lords, I am disappointed that the noble Lord should so describe this proposal. I should remind him that we are now living in a different age. The experiment so vividly outlined by the noble Lord was mooted in a very different environment from that in which we now find ourselves. Although I know that it is difficult for Members of the Opposition to understand, Europe has moved on in an extremely progressive way. For that reason, with great openness we are considering changes which may benefit our nation and may be advantageous to Europe. That openness provides an opportunity which should be grasped rather than cavilled at.
Lord Tordoff: My Lords, I am glad that the Minister has begun to answer the questions I put to her a week last Friday. Is she aware that, since that date, the Select Committee of your Lordships' House has taken evidence? I am sure that she is, because she has mentioned it. We intend to carry out an inquiry into this subject. However, we have the gravest reservations. Perhaps the Minister will read the report published five years ago by the Select Committee. She will learn from that the reasons why, all that time ago,
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we set our face against such an organisation. I have to say that, for the life of me, I cannot see that anything has changed.
Baroness Scotland of Asthal: My Lords, obviously we shall be very interested to read the decisions of the European Union Committee and we are grateful that the matter has attracted the committee's attention. Circumstances have changed and we believe that this proposal needs to be looked at again. We hope that the committee will examine the proposals coming from the Commission to see whether they respect the statement of principles as regards what is best dealt with at European, national or regional level; in other words, to try to reach a political judgment on whether a proposal respected the competencies of the EU. The Government think that that is a useful role and should be explored. We very much welcome the vision that might be shared by others, and in particular we would welcome the erudite and informed way in which the committee has examined such matters in the past. We shall certainly give such views our deepest consideration.

Israeli/Palestinian Violence
3.15 p.m.
Baroness Williams of Crosby: My Lords, I beg leave to ask a Question of which I have given private notice; namely, whether Her Majesty's Government are aware of any representations which have been made to the Government of Israel regarding attacks by armed settlers on Arab inhabitants of East Nazareth and on Palestinian villages and what information they have on the lack of police protection and the use of live ammunition against unarmed civilians.
Baroness Scotland of Asthal: My Lords, the Government have been appalled at the level of violence and casualties in Israel and in Palestinian areas over recent days. The Foreign Secretary spoke to Shlomo Ben-Ami, the Israeli Foreign Minister, on Saturday 7th October, to express his concern at the situation and to urge de-escalation.
At the Prime Minister's request, the Foreign Secretary is now visiting the region to support efforts to stop the violence and to bring both sides back to negotiations. He is meeting the Prime Minister, Ehud Barak, and Foreign Minister Ben-Ami this afternoon. This evening, he will meet Palestinian leaders, including President Arafat, and he plans to travel on to Egypt, Jordan and Syria.
Baroness Williams of Crosby: My Lords, perhaps I may thank the Minister for that reply and make one observation. With due humility, those of us who wish the state of Israel every possible success are very much aware, from our own experience of Northern Ireland, of the escalation that follows the use of armed force against unarmed civilians.
Perhaps I may ask the Minister the following question. I understand that Mr Barak says that he would accept a tribunal of inquiry into the

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disturbances provided it was led by the United States. To that end, we all recognise the contribution that President Clinton is attempting to make. I further understand that the Palestinian authorities wish to add to that committee of inquiry. Can the Minister say whether she thinks that there might be a possibility of that inquiry now moving ahead, possibly with an additional representative from one of the Arab states and, if I may so suggest, a representative from one of the EU states, given that the EU now pays for the great majority of the expenditure of the civil authority in the Palestinian areas of the region?
Baroness Scotland of Asthal: My Lords, I must say straightaway that I am not in a position to give the noble Baroness an answer to that question. I am sure she will understand that at the moment we are sailing in extremely dangerous waters. Matters are being handled with the greatest sensitivity. Indeed, it is for that reason that our Foreign Secretary is today visiting the region to try to talk to all the relevant parties.
Clearly, it is essential that we achieve some kind of rapprochement between the parties. To echo what the noble Baroness has indicated, there are one or two encouraging signs. I am sure that I shall be able to report to the House more clearly once we know a little more about the current situation.
Lord Howell of Guildford: My Lords, I support all that has been said by the noble Baroness, Lady Williams. The point she has raised is absolutely correct. A degree of even-handedness is the most desperately needed quality in this tragic situation.
It is certainly true that the Israeli actions have been extremely provocative, and in some cases—as we have now been able to read—hideous atrocities have been committed by one side against the other; namely, by the Jews against the Arabs. However, atrocities have also happened on the other side. The activities of the Palestinian groups have clearly been calculated and orchestrated in many cases—an organised rage.
Is it not absolutely vital now—I am sure the Minister's right honourable friend the Foreign Secretary will pursue this point—that Mr Arafat issues the call for calm that he could perhaps have issued a few days ago? It might have saved a few lives. Can the Minister assure us that during his time in the Middle East the Foreign Secretary will bring to bear all of his authority and that of the British Government to ensure that that call for calm comes from the Arab side at a time when the extreme violence used by some of the Israeli authorities and military groups is rightly challenged and questioned?
Baroness Scotland of Asthal: My Lords, I can say without qualification that it is of the utmost importance that calm and moderation should be adopted by all sides in this very dangerous situation. Her Majesty's Government and my right honourable friend the Foreign Secretary will be doing all they can
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to ensure that both sides understand the acute anxiety of the international community about what is happening in the region.
Lord Janner of Braunstone: My Lords, does my noble friend agree that any responsible leader of a country—especially an elected leader of a democratic country—faced with mob violence on the streets must take firm action to deal with it? Will she join with people like myself, who have been in some way involved with the peace process and who had great hopes for its success such a short time ago, in appealing to the Palestinian leaders to have the courage to quell the violence and to return to the negotiating table—not least because I doubt they will ever again have a braver negotiating partner than Prime Minister Barak?
Baroness Scotland of Asthal: My Lords, I agree with my noble friend that the priority is for both sides to move forward. We were at a stage where we had great hopes of peace in the region. It is important now for us perhaps not to look back but to exhort both parties to go forward in the most beneficial and peaceful way; to return to the negotiating table, which is the best place to be; and to turn away from violence on the streets.
Lord Judd: My Lords, in view of the wider international ramifications of this crisis and the need to maximise the co-ordination of the international response, can my noble friend say what the Government see as the role of the Security Council in this situation?
Baroness Scotland of Asthal: My Lords, the House will know that a Security Council resolution was passed earlier this month. That is an important indicator to both players in the region of the international community's views in relation to what is happening there. We hope that both sides will take proper cognisance of that resolution and use it as a way forward. We also know that Mr Solana and Kofi Annan are taking an active role. We welcome their involvement. We wish God's speed to all parties which seek peaceful negotiation.
The Lord Bishop of Guildford: My Lords, I must declare an interest. I am president of the United Kingdom friends of an organisation called Sabeel, which is a group of Palestinian Christians seeking peace with justice rooted in Jerusalem. I am aware through them and through the Anglican bishop in Jerusalem of the long-standing difficulties that Palestinian Christians have experienced owing to the restrictions placed upon them attending their places of worship. Can the Minister comment on the suggestions we have heard from religious leaders in Jerusalem that Mr Sharon's walk on a sacred site was hardly an innocent Sunday afternoon stroll but an act of serious provocation, backed by a large number of Israeli troops positioned not too far in the background?
Will the Government press upon the authorities in Israel that the violence and the scenes of which we are aware will not be ultimately resolved until the

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demands for justice among the dispossessed in this land are properly addressed? I am immensely grateful for the tone of the Minister's answers, but until these matters of justice are addressed I fear a tinder box situation will continue.
Baroness Scotland of Asthal: My Lords, I understand fully the sentiments expressed by the right reverend Prelate. I know full well that Palestinian Christians have been very active in this area and that, regrettably, there has been much suffering among all parties throughout these difficulties.
The House will know that Britain stands by Security Council Resolution 1322 and we were represented on the team of negotiators that worked on the resolution. We must of course take cognisance of how the issues unfolded. As the right reverend Prelate said, justice is most important—but justice for all parties; not justice for one side at the expense of the other. One of the tragedies of the situation is that the "honours" are shared in relation to poor behaviour.
We need to concentrate on the future; we need to concentrate on doing whatever is possible to bring the parties back to peaceful negotiations as opposed to violence on the streets.

Health Service Commissioners (Amendment) Bill
Read a third time, and passed.

Countryside and Rights of Way Bill
3.26 p.m.
Lord Whitty: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Whitty.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Schedule 6 [Amendments relating to creation, stopping up and diversion of highways]:
Baroness Byford Baroness Byford moved Amendment No. 371:
Page 62, line 26, leave out from ("authority") to ("the") in line 28.
The noble Baroness said: In moving Amendment No. 371, I shall speak also to Amendment No. 384.
We begin today where we left off on Monday night—that is, considering the difficult issue of crime in both our rural and urban areas. The Government have amended their original Bill to remove the stipulation that a right of way subject to a proposal to extinguish or divert it for the purposes of crime prevention had to be located in an urban area. At Committee stage in another place, the Minister was persuaded by the strength of argument to change the
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wording from "located in an urban area" in the original Bill to "a designated area" in this Bill. That is welcome—apart from the bureaucracy involved, but I shall come back to that later.
These amendments seek to remove the provisions in Sections 118B(1)(a) and 119B(a) of the Highways Act 1980 which require the Government to go through the lengthy and bureaucratic process of designating areas where the powers can be used before they can be so used. This would enable a measured and speedy response to problems and save on costs.
In any case, the Secretary of State is ill placed to determine in which areas the powers might best be used. Local highway and police authorities are surely closer to and have a far greater knowledge of their own locality. They should be able to come to their own decision as to whether or not a particular route should be closed or diverted. Each case should be treated on its merits and not depend on an arbitrary designation by central government.
Last weekend, the Sunday Times led with an article headed,
"Hidden explosion in rural crime revealed".
The report shows that the true level of crime in some parts of the country is up to six times higher than is indicated by the Government's published figures. A second report based on a survey undertaken by Experian of some 50,000 people, predicted the five areas where burglaries are expected to rise the fastest. They are: Dyfed/Powys—where a rise of up to 20 per cent is predicted; and a rise of between 6 and 16 per cent is forecast for North Wales, Cumbria, North Yorkshire and Cheshire. The report reveals that in Staffordshire three times as many people had experienced burglary as had reported it. In Hampshire, the figure was nearly four times as many, and the figure for Wiltshire was similar.
3.30 p.m.
Lord Harris of Greenwich: Perhaps I may ask the noble Baroness a question. Is she aware that the British Crime Survey has shown over many years that the level of actual crime is higher than the apparent figures published by local police forces? There is nothing new in the point that the noble Baroness is making.
Baroness Byford: No, indeed. But the Sunday Times article referred to both sets of figures. The noble Lord's interjection was right, but the report to which he alludes indicates smaller increases in the recorded crime figures than does the Experian survey.
The noble Lord has anticipated my remarks—namely, that many of us who live and work in the countryside have experienced what some might regard as smaller problems which are not necessarily reported to the police. I can confirm that from my own experience. At home—which I believe would fall into the new phraseology of "curtilege"—we have twice had occasion to ask people to leave the property, which they should not have been on. The first time, they left; the second time, they came back and torched the barn. Obviously, on the second occasion the fire

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brigade was called, but we did not report the matter to the police. I suspect that the same is true of many other farmers. So although a crime had been committed, it was not recorded by the police. The noble Lord is right: it is common knowledge that there are increases in crime.
These amendments are important because they place the responsibility of closing footpaths very much on the locality; they place it with the local highways and police authorities. I beg to move.
Earl Peel: I support my noble friend in these four amendments. Speaking first to Amendments Nos. 371 and 384, I can see no logic in the Secretary of State being involved in cases of closure or diversion of footpaths. It seems to me that either there is a problem and the most appropriate way of reducing crime is by closing or diverting the path, or there is not a problem. Frankly, I do not see why the Secretary of State should involve himself in such matters. Furthermore, these are local matters and are best dealt with by the police and the local authorities. I sincerely hope that the Government will look seriously at these two amendments.
Baroness Carnegy of Lour: I hope that the Committee will support my noble friend on this point. It sounds like a small matter, but it is in fact a rather large one. Anywhere in the country, a highway may make it more possible than it would otherwise be for crime to be committed. It could happen anywhere. It is ridiculous for the Secretary of State to have to say where that is more, rather than less, likely. Crime crops up anywhere, and highways are places where people who want to commit crimes very often gain access. The Government have an opportunity to lessen the appalling centralisation that is apparent in the Bill and to make it possible for local people to decide what should happen on their footpaths when their property is threatened by crime.
Baroness Miller of Chilthorne Domer: Given the way in which the noble Baroness, Lady Byford, explained her amendment, it sounded as though, were it to be passed, the local parish council would be able to have an enormous say in what would happen to the paths in relation to crime. But as I understand the clause as drafted, the decision would still be that of the highway authority which, in the case of many of the authorities quoted by the noble Baroness, may cover a vast rural county; and the parish council is nearly as remote from its county as is the Secretary of State. Nevertheless, I do not feel that these amendments would necessarily bring the matter much closer to the parish council.
More seriously, the noble Baroness's amendment removing the words,
"which would otherwise disrupt the life of the community"—
Baroness Byford: I believe that that amendment has been de-grouped. I have spoken to Amendments Nos. 371 and 384, which stand on their own. I do not think I have made a mistake.
Baroness Miller of Chilthorne Domer: I thank the noble Baroness. I shall save my comments on the matter until later. The Minister indicates that the amendment is included in the grouping.
Baroness Farrington of Ribbleton: No indication has been given that the grouping has changed. The noble Earl, Lord Peel, spoke to amendments in this group. It would perhaps be helpful to inquire as to whether any other cases of de-grouping are intended as it would make for a more orderly debate.
Baroness Byford: I apologise to the Committee. It is terrible to get matters wrong in moving the first amendment. I should have spoken to Amendments Nos. 372 and 385 at the same time. Is that correct?
Baroness Farrington of Ribbleton: Yes.
Baroness Byford: With the leave of the Committee, perhaps it would be helpful if I spoke to those amendments as well. It is my mistake.
Perhaps I may turn to Amendments Nos. 372 and 385. Proposed new Sections 118B(1)(a) and 119B(1)(a) would provide the powers to close or divert paths for the purposes of crime. However, these powers can only be used in relation to crime,
"which would otherwise disrupt the life of the community".
In practice, that test can be viewed in only two ways. First, I suggest that it would be impossible to satisfy that test, because someone could always be found among user groups—and not necessarily those based in the community concerned—to argue that particular crimes did not disrupt the life of the community; on the other hand, the test could be set aside every time because it could be equally well argued that every crime disrupts the life of the community and it certainly disrupts the life of the person affected and makes neighbours more wary as to the possibility of crime being committed. Accordingly, the test does nothing to assist the highways authority in determining whether to exercise its powers and we suggest that the provision should be deleted. Highway authorities would then be free to exercise their discretion to decide that paths should be extinguished or diverted simply in the interests of preventing or reducing crime.
The second two amendments to which I have spoken relate to a considered value judgment. I wonder whether we should be making legislation where it is reliant on a value judgment. I commend the amendments to the Committee.
Baroness Miller of Chilthorne Domer: Perhaps I may continue with the point that I was making. It is fundamentally important that some test is put in place. Just because we are talking about footpaths and bridleways, which people may think of as minor rights of way in communities, they are no less important than the roads network. If we were to begin talking about closing roads where a local authority arbitrarily decided that it was able to do so without a rigorous test in place, there would be far more objection.

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I hope that in the future the footpath network will be more widely used. We certainly wish to see car use reduced. I am afraid that this kind of amendment might result in pressure being put on councillors to start closing the footpaths network without due test, which we should strongly resist. I have been a victim of three break-ins during the past year-and-a-half. There are two footpaths situated close to my house, but I should still say that those break-ins occurred due to the proximity of the road, not the footpaths. However, if I were so minded, I could equally claim that they happened as a result of criminals walking down the footpaths, though it would be hard to prove. This debate needs to take place. I suggest that the wording in the Bill as it stands would be a good test for introducing that debate.
Earl Peel: I support my noble friend's amendment. Quite frankly, I believe that these matters are best dealt with at a local level. That is the main point. The difficulty that we have with this part of the Bill is that we are not sure how to define the term "community". Are we talking about 50 per cent of the local population or are we simply talking about one or two people? For example, if a collection of houses situated somewhat apart from a village had been subjected to a series of burglaries, would that constitute disruption to the life of the community? I do not know the answer. But, conversely, if those two houses were, say, half a mile away from the village, the inhabitants could no doubt be described as "the community". In such circumstances, it is possible that another judgment would be forthcoming. This seems to me to follow the lines of the arguments that 1 advanced in respect of Amendments Nos. 371 and 384. As my noble friend said, let us not put unreasonable conditions on this very important part of the Bill. We should allow local knowledge and common sense to prevail.
I have one question for the Minister. If there is a footpath that runs through access land, which under the Bill is open to general rights by the public, clearly it would be possible to close the footpath under these provisions. However, I do not believe that there are any provisions under either Part I or Part II of the Bill for the closure of access areas for similar matters. If that is not the case, it seems to me that that is something to which the Minister ought to give serious consideration.
Lord Renton: I should like to follow on from my noble friend's interesting point. As far as I remember, the smallest area contemplated by the law is a parish. Although some parishes are fairly large, everyone living in that parish is "a community".
3.45 p.m.
Lord Greaves: I very much regretted not being able to be present during the Committee proceedings on Monday when similar matters were discussed. There is widespread concern that many of the provisions of Part II of the Bill will reduce, rather than expand, the opportunities for people to walk on footpaths and ride
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on bridleways in the countryside. It is a matter of debate as to whether that is right or wrong. Indeed, the issue was debated on Monday.
Attempts such as those contained in these amendments to provide greater opportunity for restriction can only increase that concern. The question has been asked as to why the Secretary of State should be involved. I am a localist on many issues. However, if such an issue is left only to local opinion, half of the people affected by the outcome will not be involved because they are not local by definition. The rights of way network in the countryside is used by local people but it is also used by people from outside the immediate locality. If we leave this to be dealt with at a very local level, we risk a hue and cry in many places. People will seize on this part of the Bill when crime occurs. Unfortunately, crimes occur everywhere from time to time. When they do, people will immediately start petitions to close footpaths. There is a risk that that will result in the build up of campaigns in rural areas and on the fringes of urban areas for the wholesale closure of historic rights of way that have existed for many years.
It may be necessary to consider such a risk as regards certain areas. I believe that my noble friend Lady Scott put forward our concerns. Indeed, I think that we should prefer not to have this provision in the Bill. However, if it is to be included, there must be safeguards to prevent people at a local level misusing it in such a way that all the stated aims of the Bill to enhance the rights of way network in the countryside will be affected.
The single main factor in the growth of crime in rural areas as regards highways is not footpaths; it is the development of the motorway network and fast roads which allow people to travel to areas quickly, do their worst and get out again. We all know that that is the case. No one is suggesting that we should close down motorways. If we want to tackle crime, let us do so. We should not blame it on the availability of rights of way.
Lord Whitty: I am not persuaded by the arguments in favour of these amendments, largely for the reasons outlined by the noble Lord, Lord Greaves. We are talking about rights of way in both urban and rural areas. As I said during Monday's debate, our intention is that these new Sections 118B and 119B to the 1980 Act should be used sparingly to tackle serious problems of crime. They should not be used as an excuse for restricting the availability of existing and often historic rights of way.
It is not a question of the Government being soft on crime; nor are we complacent. We are concerned about the rise in crime in both rural and urban areas. But the key question is: what is the right mechanism for tackling crime? There are many ways in which crime should be more effectively tackled. Surely the closure of a highway is the measure of last resort. A right of way should be closed only when the threats posed by its availability to criminals are greater than its benefit to the public; in other words, the public interest in reducing crime has to be weighed against the public

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interest in losing a right of way. Indeed, many people rightly argue that in some cases the more people who use a highway or a right of way, the less likely crime is to occur.
The Government introduced these provisions because we stood by our belief that there are situations where closing or diverting a right of way could be justified. However, we do not wish to see that generalised. Indeed, we would need to find some fairly robust tests before we would resort to such a measure. The Government responded in another place to the arguments that the powers should not be confined to urban areas, as originally provided. We indicated then that there might be settlements and other places within rural areas where the use of such powers may well be necessary. Nevertheless, we regard such places as being relatively few. Therefore, these powers should be a last resort option.
Amendments Nos. 372 and 385 would remove one of the requirements that such powers should only be used when criminal activities are widespread in an area and are disrupting the local community. Unlike the noble Earl, Lord Peel, and the noble Baroness, we are not talking about relatively isolated or even sporadic criminal activity; we are talking about a systematic use of a highway, a byway or a right of way for criminal purposes. The effect of a single incident may well cause concern but it is not sufficient reason for closing a long-standing right of way. After fairly extensive debate in another place, we placed these provisions in the Bill and they were welcomed at that time. I believe that they strike the right balance.
I turn now to the query from the noble Earl, Lord Peel, about the rather different situation in relation to access land. If anyone is engaged in criminal activity on access land, criminal sanctions apply. I refer to the laws of trespass and the criminal law. Those sanctions will apply on that land. However, with regard to rights of way, we are dealing with a different situation. I do not think that the two situations are analogous. I hope that, for the reasons I have spelt out, the noble Baroness will not press the amendments.
Lord Peyton of Yeovil: I do not think that I heard the noble Lord refer to the involvement of the Secretary of State. If he did so and I missed it, I willingly give way. I belong to a legion of people who do not credit successive Secretaries of State with omniscience, or even exceptional wisdom. They are more than capable of making mistakes and, they take quite a long time in making them. It is a common habit of successive governments not to have sufficient confidence and trust in local authorities. Over a long term that has the effect of weakening local authorities when our desire should be to strengthen them. I hope that the noble Lord will at least refer to the involvement of the Secretary of State. He certainly has not as yet said anything to justify it.
Lord Whitty: I said that the use of these provisions should be subject to fairly robust criteria and procedures. The procedure in this case seems to us to require referral to the Secretary of State. I agree that Secretaries of State, with certain obvious exceptions, are not omniscient, but nor are county councils. The point made by the noble Baroness, Lady Miller, is also apposite here in that a temporary panic in relation to a particular crime or wave of crime could lead to local councils engaging in the closure of significant numbers of rights of way. That would be wrong. That is why we say that the matter should not be left simply to local decision. Rights of way should be closed for that reason only in exceptional cases. That is why we think that the Secretary of State should be involved in the matter and why we believe that the robust tests set out in the Bill would meet that point.
Baroness Carnegy of Lour: I beg the Minister to put himself in the shoes of people in a local community. If they consider that a footpath or a bridleway facilitates the commission of a series of crimes, they will discuss that matter within the local community. The valid arguments which the noble Baroness, Lady Miller, deployed will also be deployed in the local community. The incidence of crime on a footpath situated alongside a main road will be discussed. The local community may decide that they want to close a footpath. The Secretary of State, with Olympian detachment, may say that he will not allow it, as he thinks that he knows better than the local community. These are matters for the relevant localities. Of course, people from outside the immediate locality who want to use the footpath must be involved in the discussions, as the noble Lord, Lord Greaves, said. However, these are nevertheless local matters. I am surprised to hear the arguments that have been put forward by the Liberal Democrats as they invented community politics.
Baroness Miller of Chilthorne Domer: I had avoided making party political points until this moment. However, I am worried about those Conservative county councils who might use the amended provisions—if the amendments are accepted—to close the footpath network. The next group of amendments seeks to remove the words "high levels of" and "persistent" with regard to crime. If those amendments are accepted, those county councils could close the rights of way network for virtually any reason.
Baroness Byford: I am extremely surprised at the noble Baroness's final comment, which I believe she may live to regret.
I thank my noble friend Lord Peyton for his comments as he touched on the very matter that I intended to mention. The Minister's response to those comments rather suggested that the Government do not have any trust in local authorities and therefore feel that the relevant decision must be taken by the Secretary of State. I always took the view that the provisions we are discussing would be used sparingly.

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There is no disagreement between us on that. We realise that they are measures of last resort. However, in areas where crime is a big problem, I believe it is right to have a power of footpath closure. The noble Lord, Lord Greaves, said that such closures could affect people from outside the immediate area. I shall read Hansard carefully tomorrow, but I thought that he said he could not trust local people in this matter. That is an extraordinary statement, if he did say that. That makes the position of the Liberals on this matter even more confusing.
I thank those Members of the Committee who have spoken. I hope that the Minister has realised the strength of feeling that exists on this matter. I shall not press the amendment now but I believe that the Government would be wise to reconsider the matter. 1 beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 372 and 372A not moved.]
Baroness Byford Baroness Byford moved Amendment No. 373:
Page 63, line 3, leave out ("high levels of").
The noble Baroness said: In moving Amendment No. 373, I wish to speak also to Amendment No. 386.
The proposed new Sections 118B(3)(a) and 119B(3)(a) of the Highways Act 1980 provide that powers to close or divert paths for the purposes of crime prevention can be used only in relation to highways that are
"affected by high levels of crime".
The proposed amendments would remove that unnecessary test. How do the Government anticipate judging what is or is not a high level of crime as that is not spelt out?
The Government seem intent on fettering what should be flexible and responsive powers to tackle crime related to rights of way with tests which put unnecessary barriers in the way of authorities seeking to use these powers. We accept that the powers will not be used on a regular basis. The requirement to show that premises adjoining or adjacent to a highway are
"affected by high levels of crime"
is another example. How will "high" be defined? Will "high" take account of the differing geographical incidence of crime both between and within authorities? I beg to move.
Lord Renton: The expression "high levels of crime" is not defined in the Bill, so far as I am able to discover. It is a vague expression. Some people would say that more than one theft constitutes a high level of crime. Other people believe that that constitutes a murder or manslaughter. The expression is so vague and uncertain. One of the responsibilities that we all have in both Houses of Parliament is to ensure that the laws that we pass are certain in legal effect. Nothing could be more uncertain than the expression "high levels of crime".
Lord Whitty: By and large we have gone through these arguments. As I think the noble Baroness, Lady Miller of Chilthorne Domer, suggested, these amendments would remove another, even more important, part of the structure of safeguards with regard to the use of these powers. The only time that we would wish to use the powers is where there is a genuine threat to significant numbers of people which is significantly abnormal and outweighs the public interest—by and large, that is the interests of the local people—in keeping a right of way open.
The effect of Amendments Nos. 373 and 386 would be to allow a right of way to be closed even if there were only a handful of crimes committed by people using it. I appreciate the point made by the noble Lord, Lord Renton, that the word "high" is not defined. However, by definition, that is a relative term. We are talking about unusually high levels of crime. It might be helpful if I were to say a little more about the process. I think that it was slightly misunderstood in the earlier debate.
High levels of crime would in the first case be identified by local authorities on application for a designation. The designation of the area is for the Secretary of State. Introduction of orders under that designation would be a matter for the local authorities. There would he a local element of application once the area had been identified as an abnormally high risk area.
The idea that we should use these provisions frequently to close footpaths and bridleways does not seem appropriate. The vast majority of crime is committed on premises. People have access on roads and pavements. Far more villains pass down the A13 than down the average rural footpath, but I should not be in favour of giving Essex County Council the ability to close the A13. One has to be proportionate. One has to recognise the number of people likely to be affected and to make a judgment as to the likelihood and incidence of crime within that area relative to the overall community. That is why the balance is built in there. That is why the process has to be robust and vigorous before such designations and orders can be made.
As regards the point raised by the noble Baroness, Lady Miller, it should not be left entirely to county councils although they can initiate the process and make the orders under such designation. It needs a tighter control than that; otherwise significant parts of our rights of way system could be under threat for reasons which purport to relate to crime but do not. I hope that the noble Baroness will not pursue the amendment.
Lord Peyton of Yeovil: As he so often does, my noble friend Lord Renton puts his finger on the point. The Minister's reply leaves me wondering what the answer is to the question that the noble Lord should be facing. What is the point of putting words into a Bill of which no one knows the meaning?
Lord Bridges: The Countryside Agency is unaware of there being any link between rights of way and

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criminal activity; and the formal closure or diversion of a path would be unlikely to deter the determined criminal from pursuing his crime. What is important is that the procedure for creating or altering rights of way should be transparent, clear and open to everyone.
Lord Renton: In view of what has been said by Members of the Committee since the Minister replied to the debate, perhaps I may implore him to think again. The noble Lord must try to achieve certainty.
Lord Mishcon: I wonder whether the Committee would agree that if a tribute were paid, as it so often is, to the high level of debate in this Chamber we should have no difficulty whatsoever in agreeing to it.
Baroness Byford: I shall not be deterred. The Minister has not answered my simple question on how one judges high levels of crime. I wish to test the opinion of the Committee.
4.3 p.m.
On Question, Whether the said amendment (No. 373) shall be agreed to?
Their Lordships divided: Contents, 85; Not-Contents, 144.

Division No. 1

CONTENTS

Aberdare, L.

Higgins, L.

Anelay of St Johns, B.

Hogg, B.

Astor of Hever, L.

Hooper, B.

Attlee, E.

Howe, E.

Barber, L.

Howell of Guildford, L.

Beaumont of Whitley, L.

Inglewood, L.

Biffen, L.

Laird, L.

Blatch, B.

Lamont of Lerwick, L.

Boardman, L.

Lucas, L.

Brabazon of Tara, L.

Luke, L.

Bridgeman, V.

McColl of Dulwich, L.

Brightman, L.

Mackay of Ardbrecknish, L.

Buscombe, B.

Marlesford, L.

Buxton of Alsa, L.

Miller of Hendon, B.

Byford, B.

Molyneaux of Killead, L.

Caithness,. E.

Monson, L.

Campbell of Alloway, L.

Montrose, D.

Campbell of Croy, L.

Mowbray and Stourton, L.

Carnegy of Lour, B.

Murton of Lindisfame, L.

Carver, L.

Northbrook, L.

Clark of Kempston, L.

Northesk, E. [Teller]

Cobbold, L.

O'Cathain, B.

Cope of Berkeley, L.

Oxfuird, V.

Courtown, E.

Palmer, L.

Crathorne, L.

Park of Monmouth, B.

Crickhowell, L.

Peel, E.

Cumberlege, B.

Peyton of Yeovil, L.

Dixon-Smith, L.

Prior, L.

Elles, B.

Pym, L.

Elton, L.

Rawlings, B.

Fookes, B.

Reay, L.

Glenarthur, L.

Renton, L.

Glentoran, L.

Roberts of Conwy, L.

Hanham, B.

Rotherwick, L.

Hayhoe, L.

Ryder of Wensum, L.

Henley, L.[Teller]

Seccombe, B.

348

Selborne, E.

Swinfen, L.

Sharples, B.

Thomas of Gwydir, L.

Shaw of Northstead, L.

Trefgarne, L.

Skelmersdale, L.

Vivian, L.

Wilcox, B.

Stodart of Leaston, L.

Willoughby de Broke, L.

Strathclyde, L.

Young, B.

NOT-CONTENTS

Acton, L.

Hollis of Heigham, B.

Addington, L.

Hooson, L.

Allenby of Megiddo, V.

Howie of Troon, L.

Alton of Liverpool, L.

Hoyle, L.

Amos, B.

Hughes of Woodside, L.

Andrews, B.

Hunt of Kings Heath, L.

Archer of Sandwell, L.

Irvine of Lairg, L. (Lord Chancellor)

Avebury, L.

Islwyn, L.

Bach, L.

Jenkins of Putney, L.

Barnett, L.

Judd, L.

Bassam of Brighton, L.

Kirkhill, L.

Bath and Wells, Bp.

Laming, L.

Berkeley, L.

Lea of Crondall, L.

Bernstein of Craigweil, L.

Lester of Herne Hill, L.

Billingham, B.

Lincoln, Bp.

Blackburn, Bp.

Linklater of Butterstone, B.

Blease, L.

Lockwood, B.

Bledisloe, V.

Lofthouse of Pontefract, L.

Borrie, L.

Macdonald of Tradeston, L.

Bradshaw, L.

McIntosh of Haringey, L. [Teller]

Bridges, L.

Maddock, B.

Brooke of Alverthorpe, L.

Mar and Kellie, E.

Bruce of Donington, L.

Marsh, L.

Burlison, L.

Mason of Barnsley, L.

Carter, L.[Teller]

Massey of Darwen, B.

Christopher, L.

Merlyn-Rees, L.

Clarke of Hampstead, L.

Miller of Chilthorne Domer, B

Cledwyn of Penrhos, L.

Milner of Leeds, L.

Clinton-Davis, L.

Mishcon, L.

Cocks of Hartcliffe, L.

Mitchell, L.

Craig of Radley, L.

Morris of Castle Morris, L.

Crawley, B.

Nicol, B.

Currie of Marylebone, L.

Northbourne, L.

Darcy de Knayth, B.

Parekh, L.

Davies of Oldham, L.

Peston, L.

Dean of Thomton-le-Fylde, B.

Pitkeathley, B.

Desai, L.

Plant of Highfield, L.

Dholakia, L.

Portsmouth, Bp.

Dixon, L.

Prys-Davies, L.

Donoughue, L.

Redesdale, L.

Dormand of Easington, L.

Rendell of Babergh, B.

Dubs, L.

Richard, L.

Evans of Temple Guiting, L.

Roll of Ipsden, L.

Evans of Watford, L.

Sandberg, L.

Ezra, L.

Sawyer, L.

Falconer of Thoroton, L.

Scotland of Asthal, B.

Farrington of Ribbleton, B.

Scott of Needham Market, B.

Faulkner of Worcester, L.

Serota, B.

Fyfe of Fairfield, L.

Sharp of Guildford, B.

Gale, B.

Shepherd, L.

Geraint, L.

Sheppard of Liverpool, L.

Gibson of Market Rasen, B.

Shore of Stepney, L.

Gladwin of Clee, L.

Simon, V.

Goldsmith, L.

Smith of Clifton, L.

Goodhart, L.

Stone of Blackheath, L.

Gould of Potternewton, B.

Strabolgi, L.

Grabiner, L.

Strange, B.

Graham of Edmonton, L.

Symons of Vernham Dean, B.

Greaves, L.

Taverne, L.

Grenfell, L.

Tenby, V.

Hardy of Wath, L.

Harris of Greenwich, L.

Harrison, L.

Thomas of Walliswood, B.

Haskel, L.

Thornton, B.

Hayman, B.

Tomlinson, L.

Hereford, Bp.

Tordoff, L.

349

Turner of Camden, B.

Whitty, L.

Wakefield, Bp.

Wigoder, L.

Wallace of Saltaire, L.

Williams of Crosby, B.

Walmsley, B.

Williams of Elvel, L.

Watson of Invergowrie, L.

Williamson of Horton, L

Wedderburn of Charlton, L.

Woolmer of Leeds, L.

Whitaker, B.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 374 and 374A not moved.]
4.13 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 375:
Page 63, line 17, leave out ("opposed") and insert ("unopposed").
The noble Baroness said: This amendment and the others in this group are mainly technical. Amendments Nos. 378, 379, 383, 388, 390, 394 and 395 relate to local authorities' existing powers under the Highways Act 1980 to divert rights of way and to the new powers in Schedule 6 to the Bill for local highway authorities to divert rights of way to prevent crime, increase school security or protect sites of special scientific interest. In some cases when diversions have been made under current legislation, the public right of way over the existing line has been extinguished before the newly diverted route is ready for public use. The amendments will prevent that by postponing the extinguishment until the local highway authority has certified that any necessary work on the new route has been carried out.
Amendment No. 412 relates to the provisions in Schedule 6 that enable local highway authorities to close or divert rights of way to prevent crime in areas designated by the Secretary of State or the National Assembly for Wales. The areas are to be designated by order and the intention is that such orders should be made by statutory instrument subject to the negative resolution procedure. The amendment provides for that.
Amendment No. 412A makes it clear that the Secretary of State's existing powers to require applicants for closure or diversion orders to enter into an agreement with the responsible local authority about costs will be delegated to the inspector dealing with a case on appeal.
The remaining amendments in the group deal with minor technical points and small corrections to amendments tabled in another place. I beg to move.
On Question, amendment agreed to.
[Amendment No. 376 not moved.]
Lord Whitty Lord Whitty moved Amendments Nos. 377 to 379:
Page 63, line 39, leave out ("opposed") and insert ("unopposed").
Page 64, line 28, leave out ("In").
Page 64, line 28, after ("bridleways)") insert ("is amended as follows.
(2) In subsection (1)(b), for "so specified" there is substituted "specified in the order or determined".
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(3) For subsection (3), there is substituted—
"(3) Where it appears to the council that work requires to be done to bring the new site of the footpath or bridleway in to a fit condition for use by the public, the council shall—

(a) specify a date under subsection (1)(a) above, and

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

(4)").
On Question, amendments agreed to.
[Amendments Nos. 380A to 382A not moved.]
Lord Whitty Lord Whitty moved Amendment No. 383:
Page 66, line 10, at end insert—
(" .—(1) Section 119A (diversion of footpaths and bridleways crossing railways) is amended as follows.
(2) In subsection (2)(b), for "so specified" there is substituted "specified in the order or determined under subsection (7) below".
(3) For subsection (7) there is substituted—
"(7) Where it appears to the council that work requires to be done to bring the new site of the footpath or bridleway into a fit condition for use by the public, the council shall—

(a) specify a date under subsection (2)(a) above, and

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

On Question, amendment agreed to.
[Amendments Nos. 383A to 387 not moved.]
Lord Whitty Lord Whitty moved Amendments Nos. 388 to 390:
Page 67, line 14, leave out ("so specified") and insert ("specified in the order or determined").
Page 67, line 17, leave out ("authority") and insert ("council").
Page 67, leave out lines 30 to 36 and insert—
("(8) Where it appears to the council that work requires to be done to bring the new site of the highway into a fit condition for use by the public, the council shall—

(a) specify a date under subsection (4)(a) above, and

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

On Question, amendments agreed to.
[Amendment No. 390A not moved.]
Lord Whitty Lord Whitty moved Amendments Nos. 391 to 393:
Page 67, line 44, leave out ("opposed") and insert ("unopposed").
Page 68, line 13, leave out ("opposed") and insert ("unopposed").
Page 69, line 8, leave out from ("carriage-way") to end of line 11.
The noble Lord said: I beg to move.
Baroness Byford: Is Amendment No. 393 necessary? Mechanically propelled vehicles are unable to use restricted byways, so there can be no question of providing a suitable surface. I may be mistaken. Perhaps the Minister would clarify that.
Baroness Farrington of Ribbleton: Both that amendment and Amendment No. 398 relate to the new powers to divert in the circumstances as set out. They remove provisions in proposed new Sections 119B and 119E, relieving local highway authorities of any obligation when diverting a restricted byway to provide a service on the new line which is suitable for motor vehicles. As there is no right of way for motorised vehicles on restricted byways, the noble Baroness is quite right: the provisions are otiose and therefore likely to cause confusion.
Baroness Carnegy of Lour: Is the noble Baroness proposing to put an otiose amendment to the Committee?
Baroness Farrington of Ribbleton: No, I am putting an amendment to the Committee to remove an otiose provision.
On Question, amendments agreed to.
Lord Glentoran Lord Glentoran moved Amendment No. 393A:
Page 70, line 26, leave out ("subject to subsection (4) below").
The noble Lord said: There appears to be a slip in the Bill (no offence meant). It is not apparent how the exercise of the order power in proposed new Section 119D(3) of the Highways Act is subject to subsection (4). That subsection merely states that such an order is an "SSSI diversion order". It may be that the reference should be to subsection (5). However, no such "subject to" reference is contained in the equivalent provision for the crime prevention diversions of new Section 119B(4) on page 67, line 1 of the Bill. Therefore, our amendment proposes to delete that reference.
I also want to speak to Amendment No. 396A, which requires notice to be given to the owners and occupiers of land when English Nature proposes to make a diversion order for the protection of SSSIs. I do not believe that I need to make a case for that. It appears to us to be right to give people advance notice of what is happening on their land. I beg to move.
Lord Whitty: With regard to Amendment No. 393A, I believe that the noble Lord is right in relation to the cross-reference, which should be to subsection (5) rather than subsection (4). However, the substance of his amendment, which would delete that reference entirely, would have the undesirable effect of enabling an order to be made diverting a right of way so that it leads nowhere or on to a highway which is not connected with the original route. That could, in other words, create a dead end. Therefore, I accept that, with the typographical correction, the substantive move to delete that cross-reference would be undesirable.
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I believe that the conservation bodies would agree that we should not extinguish rights of way in order to protect SSSIs if adequate powers for diversions are in place. The diversion orders in the Bill are modelled on the existing public path order legislation, which also prevents the creation of a cul-de-sac. However, we have recognised the special nature of SSSI diversion orders by removing two of the conditions; namely, that the confirming authority is satisfied that the diversion will not be substantially less convenient to the public and that the line of the diverted path connects with a highway at a point which is substantially as convenient to the public. Therefore, those two conditions are removed but not the general condition.
I have some sympathy with what the noble Lord said with regard to Amendment. No. 396A. It would require English Nature or the Countryside Council for Wales to give notice of their application for an SSSI diversion. Perhaps the noble Lord will give me leeway to consider that amendment. I believe that he has a point and we shall return to the matter at the next stage of the Bill.
Baroness Carnegy of Lour: That is very good news. I believe that including,
"the owner and occupier of any land",
crossed by a highway in addition to,
"such persons as may be prescribed",
is rather peculiar. I hope that the noble Lord will not only consider the matter but will come back with an amendment. I believe that he is quite right to agree to that.
Lord Roberts of Conwy: I am sure that the Minister is absolutely right to give further consideration to this matter. It certainly seems odd that a path or bridleway could be diverted on to land of the same or another owner, lessee or occupier for the purpose of preventing damage. It would certainly be strange if that were to happen simply by order and without a proper process of consultation with the new owner who might be affected.
Lord Glentoran: The principal intention of our Amendment No. 393A is to point out that there is probably a slip in the drafting. I thank the Minister for acknowledging that. As I understand it, the reference will now be to subsection (5) as opposed to subsection (4). The Minister nods and I accept that.
I am deeply grateful and thank the Minister for what he said about Amendment No. 396A. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendments Nos. 394 and 395:
Page 70, line 40, leave out ("so specified") and insert ("specified in the order or determined").

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Page 70, line 53, leave out from beginning to end of line 5 on page 71 and insert—
("(6) Where it appears to the council that work requires to be done to bring the new site of the highway into a fit condition for use by the public, the council shall—

(a) specify a date under subsection (3)(a) above, and

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

On Question, amendments agreed to.
Lord Whitty Lord Whitty moved Amendment No. 396:
Page 71, line 50, leave out ("the Nature Conservancy Council for England") and insert ("English Nature").
The noble Lord said: I indicated at Second Reading that we proposed formally to change the name of the Nature Conservancy Council (England) to English Nature, which is the name by which the body is generally known. The Nature Conservancy Council (England) was one of the three country councils set up following the Environmental Protection Act 1990 to replace the former Nature Conservancy Council. However, since it came into existence, by and large it has been known as English Nature.
Amendments Nos. 396 and 397 relate to Schedule 6 to the Bill. The larger number of corrections in the following amendments relate to Part III of the Bill. I must confess to the Committee that one or two amendments will he needed to Part I. Unfortunately we missed them but will return to them on Report. I apologise to the Committee but hope that the principle will be accepted. I beg to move.
On Question, amendment agreed to.
[Amendment No. 396A not moved.]
Lord Farrington of Ribbleton Lord Farrington of Ribbleton moved Amendments Nos. 397 to 402A:
Page 72, line 24, leave out ("the Nature Conservancy Council for England") and insert ("English Nature").
Page 73, line 20, leave out from ("carriage-way") to end of line 23.
Page 73, line 31, after ("1") insert ("or 6").
Page 73, line 48, leave out from beginning to end of line 2 on page 74 and insert—
("(a) after "or diverted" there is inserted "or where it appears to the Secretary of State as respects a relevant highway as defined by section 118B(2), 119B(2) or 119D(2) that it is expedient as mentioned in section 118B(1)(a) or (b), 119B(1)(a) or (b) or 119D(1)(b) that the highway should be stopped up or diverted",").
Page 74, line 25, leave out ("countryside") and insert ("conservation").
Page 75, line 6, leave out ("may be") and insert ("are").
Page 75, line 13, leave out ("he") and insert ("the Secretary of State").
On Question, amendments agreed to.
[Amendment No. 402B not moved.]
4.30 p.m.
Lord Luke Lord Luke moved Amendment No. 402C:
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Page 78, line 5, leave out ("three") and insert ("two").
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 402D and 402E. New Section 121C allows a council to refuse to determine an application for a stopping up or diversion if a similar application has been refused by the Secretary of State during the previous three years. That provision has similarities to, and may have been inspired by, Section 70A of the Town and Country Planning Act, which allows councils to refuse to determine a planning application if a similar one has been refused by the Secretary of State in the past two years. Obviously, that is to prevent unmeritorious repeat applications grinding down local residents.
However, the planning provision referred to above is subject to a requirement that there has been no significant change in material circumstances since that decision. Such a change could justify a different decision. The Countryside and Rights of Way Bill provision does not include a "no change of circumstances" requirement. These amendments would reduce the period to two years and require a finding of no material change in circumstances. Subsection (2) would therefore become unnecessary when such an obligation was imposed and is therefore proposed to be deleted. I beg to move.
Lord McIntosh of Haringey: I am afraid that these amendments would undermine provisions in the new Section 121C which the Bill inserts into the Highways Act. Those provisions enable local authorities to decline to determine applications from land managers and local authorities for orders diverting or closing rights of way when similar ones have been refused by the Secretary of State on appeal within the previous three years.
We believe that three years is a reasonable intervening period. After all, the original application will have been thoroughly assessed by the local authority and by the Secretary of State. We do not believe either that applicants should be able to plead a change of circumstances during the three years. It really must be for applicants to try to get it right the first time. There must be some sort of balance to prevent repeat applications every time someone thinks that his circumstances have changed. Again, we believe that it is reasonable for there to be a three-year gap after an application has been refused on appeal before an authority should be required to determine a similar one.
There is nothing to prevent someone from submitting a further application within the three years and the authority would have the discretion to determine it if it wished. Having said that, we believe that there should be a slightly different approach to schools because their applications concern the safety of staff and children.
For that reason, the Bill already requires that before an authority declines to determine a similar application from a school within the three-year period it must first consider whether there has been a

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substantial increase in the risks to the children and staff. We do not believe that there is a case for making similar provision for applications from land managers.
Lord Luke: I thank the Minister for that reply. I am interested in what he said about schools and rather disappointed by his approach to the substance of the amendments. But in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 402D and 402E not moved.]
Baroness Scott of Needham Market Baroness Scott of Needham Market moved Amendment No. 403:
Page 78, line 35, at end insert—
("(5) A council may decline to determine an application under section 118ZA and 119ZA if—

(a) it does not have the power to make a public path extinguishment order under the provisions of section 118 above, or a public path diversion order under the provisions of section 119 above, as appropriate, in respect of the footpath or bridleway to which the application relates;

(b) having regard to requirement of either section 118 or 119, it also appears to the council from the information currently available that any such public path order made by the council would not be capable of being confirmed, whether by the council or by the Secretary of State.").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 409, 420 and 441.
Amendment No. 403 is a small technical amendment designed to save local authorities time and money by enabling them to decline to determine an application to divert or extinguish a public right of way under proposed new Sections 118ZA and 119ZA.
Currently, the Bill gives no indication of the criteria against which those sections should be determined or the grounds for accepting or rejecting them. This amendment makes it possible for an authority to refuse an application at an early stage on the grounds that it would not, at the end of the process, be possible for it to confirm it, perhaps, for example, because it can demonstrate that the path is still needed.
Amendment No. 409 relates to the subject of ploughing. As I said before, lowland arable counties, like Suffolk, will still be relying on the public rights of way network for access to the countryside. Apart from the many difficulties already discussed in relation to getting new routes on to the definitive map and protecting the status of those already on it, users also face a whole range of obstructions. Despite the many real improvements brought about by the 1990 Act, ploughing and cropping remain serious obstacles to the enjoyment of public rights of way.
At the moment, a member of the public can take action with regard to cropping and structural obstacles but have to rely on local authorities to deal with paths which have been ploughed out. The amendment would empower individuals to take action on ploughing offences and would help many voluntary footpath workers. There would be no added burden on local
356
authorities. Law-abiding farmers, of whom there are many, would have nothing fear from this change while walkers seeking to enjoy their lawful rights would benefit greatly.
Amendment No. 420 also relates to the question of obstructions. Currently a member of the public may use Section 56 of the Highways Act to oblige the local authority to repair it, provided it can be shown, first, that the highway is maintainable, and, secondly, that it is out of repair. That is reasonable and well understood. But under Clause 59 of the Bill, a complainant seeking the removal of an obstruction must also demonstrate that the status of the right of way is not seriously disputed and that the highway authority is unable to demonstrate that its backlog prevents it dealing with the case in a reasonable time.
I suggest that the number of disputed routes and the number of obstructions on local authority books will make it very difficult for anyone to use the provision in the Bill to seek the removal of an obstruction. The fact that someone would be expected to demonstrate that all four criteria had been met in order to be safe from the possible award of costs acts as a significant deterrent to anyone wanting to use the provision.
It would be far better if the Bill replicated the Highways Act and required the first two tests: that the route and the obstruction qualify. If those tests are satisfied, the court could make the order but allow the appropriate length of time for the local authority to deal with its own priorities and the question of disputed routes.
I should say at this point that the wide range of exemptions from the definition of obstruction is also of concern. It is very difficult to see why, for example, a caravan does not constitute an obstruction for the purposes of the Bill. To exempt anything other than a permanent dwelling will be storing up an additional batch of problems for the future.
Finally, I turn to Amendment No. 441. Under current legislation, user groups and individuals are able to bring a case of obstruction of the highway to the magistrates' court. That usually occurs where, for some reason, they have been unable to persuade the local authority to deal with the obstruction.
But it is a matter of great frustration to those bringing the case that even where the magistrates convict the perpetrator, there is still no power to remove the obstruction. The most well-known example is the van Hoogstraten case where the company was found guilty of obstruction, fined and ordered to pay costs to the Ramblers' Association. Despite that, to this day, the obstruction remains. Clause 60 helps to solve that by enabling the court to order the person to remove the obstruction. We should like to extend that by enabling courts to remove the obstruction and recover costs if the perpetrator refuses to comply. I beg to move.
Baroness Miller of Chilthorne Domer: I rise to speak to Amendment No. 441A in this group. The purpose of the amendment is to address an issue which prevents a process being streamlined, both for local authorities and the Secretary of State.

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Under current law, when an authority makes an order to change a right of way it must give notice and seek representations. At present, because the law is not understood, objections are frequently made which cannot be considered in determining an order. The only factors which can be considered are whether a right exists and, if so, its route and status. Factors which give rise to objections but which cannot be taken into account are the effect on nearby properties and whether the use is appropriate.
At present, a surveying authority faced with any such objection must, unless it can secure its withdrawal, forward both the order and the objection to the Secretary of State for determination. Similarly, the department has no option but to proceed to determine the order, including, where necessary, by holding a local inquiry. That is both lengthy and costly in terms of procedure.
An inquiry or exchange of representations is required to take place. That is futile. Even if the grounds for objection are sustained, they cannot lead to a refusal to confirm the order. Alternatively, an inquiry to hear relevant objections is needlessly prolonged and may spend considerable time debating issues which are irrelevant to the eventual decision.
Guidance on this matter is currently contained in a booklet issued by the Planning Inspectorate entitled, Definitive map orders. The booklet gives advice on the main points to be taken into account by the Secretary of State or inspector. Section 5 states the only points to be considered.
When the Bill was debated in the other place, Mr Michael Meacher, the Minister for the Environment, conceded that the points raised by a Liberal Democrat Member's amendment were relevant. He stated:
"The new clause's primary purpose is to ensure that when there are irrelevant objections to an order, a surveying authority can go ahead and confirm the order—in other words treat it as an unopposed order".—[Official Report, Commons, 14/6/00; col. 949]
That makes eminent sense. The Minister went on to say that he had a lot of sympathy with the objective of the amendment and that if the Government could overcome the difficulties, he would introduce proposals.
I hope that the Government have considered the matter seriously. The fact that they have not tabled their own amendment suggests that they still consider there are difficulties. Either the original drafting of the booklet issued by the Planning Inspectorate creates difficulties and needs to be redrafted or the Government need to place a provision on the face of the Bill. However, the time wasted and costs involved are obviously unacceptable.
4.45 p.m.
Baroness Farrington of Ribbleton: I hope to be able to reassure the noble Baroness that the first part of Amendment No. 403 is unnecessary. This element would enable a local authority to decline to determine an application by a land manager for an order under
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Section 118 or 119 of the Highways Act if it had no power to make the order sought in the application. Clearly, if there is no power to make an order, an authority cannot do so. For example, an authority may make an order closing a footpath or bridleway under Section 118 only if it appears to it expedient on the grounds that the way is no longer needed for public use. The right to apply for such orders under new Section 118ZA does not diminish those tests.
It is necessary for the authority to consider an application which it receives, otherwise it would have no way of judging whether or not it had the power to make an order. However, if the authority were to conclude that the grounds for making an order were not satisfied, it should refuse.
The second element appears to confuse two separate processes: the making of an order and its confirmation. An authority may make an order in good faith but should not, in every case, anticipate what objections or representations, if any, might be made which would affect the decision on whether the order should be confirmed. For example, the tests for confirming an order under Section 119 are different from those for making it.
To that extent it is difficult to see how the amendment would work in practice. However, I hope that in the light of the assurances I have given that the new right to apply for orders does not affect the grounds on which such orders may be made, the noble Baroness, Lady Miller, will feel able to withdraw the amendment.
I accept that authorities may, as the noble Baroness stated, occasionally receive applications which show little understanding of the grounds on which such an order may be made. That can happen with any consent procedure. It should be possible to filter those out through informal discussions with the applicant. If, however, an applicant insists on proceeding and the matter eventually comes to the Secretary of State on appeal, he has the power to award costs if he considers that a person has acted unreasonably.
The Bill already enables an authority to decline to consider applications in certain circumstances. Those are set out in new Section 121C in Schedule 6. They include, for example, an application which is similar to one for which the Secretary of State has refused to make or confirm an order within the previous three years.
I turn to Amendment No. 409. I listened carefully to the views put forward. I recognise the fears of those who believe the amendment would open the floodgates to unreasonable prosecutions; for example, where a farmer had missed the deadline by only a few days. However, we think that that is unlikely. Prosecutions; cost money. User groups are constantly telling the Government that they should not have to initiate proceedings when it is the responsibility of the highway authority to do so. For example, it is possible to bring private prosecutions under Section 137A of the 1980 Act which relates to crops on rights of way and which might be regarded as the counterpart to Section 134. However, the Government have not been

359
presented with evidence of over-zealous prosecutions under Section 137A. On the other hand, where, for no good reason, highway authorities are reluctant to act, there is an argument that the public should be able to take action themselves, particularly in serious cases. That is the approach we have adopted in Clause 59 of the Bill in respect of certain kinds of obstructions on rights of way.
We resisted amendments in another place which would have brought ploughing within the ambit of Clause 59 because in legal terms a ploughed footpath is more likely to constitute a nuisance than an obstruction. Moreover, the procedures in Clause 59 are more suited to obstructions which are likely to endure for some time. On the other hand, a ploughed field can become a field with growing crops in a relatively short time.
That rather leaves ploughing out of the equation in terms of public action. I understand the motives behind Amendment No. 409. I am sure that most farmers act responsibly and meet their obligations under Section 134(3) of the Highways Act. However, it is true that the restriction on who may prosecute offences under Section 134 sits oddly with the related provisions in Section 137A, and, indeed, with the general offence of wilfully obstructing a highway under Section 137 of the Highways Act 1980. Moreover, the Bill's provisions relating to temporary diversions do not prevent offences under those provisions being prosecuted privately. I am therefore prepared to consider further the case for amending Section 134, although I can make no commitment at this stage that the Government will table amendments on Report. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
Before speaking to the other amendments in this group, it may help the Committee if I explain that Clause 59 expressly applies to those obstructions whose removal highway authorities have specific powers to secure by notice, and, in the event that the obstruction is not removed, to remove it themselves, sometimes with the need of a court order, recovering their costs from whoever is responsible. I believe that that may answer one of the points raised by the noble Baroness. The types of obstruction involved are fences, gates, piles of machinery and so forth.
The Secretary of State or the National Assembly for Wales may make regulations extending the provisions to other forms of obstruction whose removal a local highway authority has power to secure. Certain kinds of obstruction are excluded from the provisions. Amendment No. 420 would lift that exclusion, bringing them within the ambit of Clause 59. I can assure the noble Baroness, Lady Miller, that the Government thought carefully about these provisions before introducing the Bill.
The main purpose of Clause 59 is to encourage local highway authorities to comply with their general duty under Section 130(3) of the Highways Act 1980 so as to prevent obstruction to their highways as far as possible. Clause 59 enables an individual to intervene in the process whereby a highway authority decides
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what its priorities for dealing with an individual obstruction should be; that is, which one it should deal with first. That is relatively unusual in local government decision-making. There has to be a balance between an individual's right to get priority given to an obstruction which is causing him particular concern and an authority's duty to decide what its overall priorities should be in the interests of the public as a whole.
We believe that obstructions caused by buildings, caravans, tents and the presence of people should not be matters for Clause 59. Public order issues can arise when action is taken to remove obstructions of this nature and a local highway authority is best placed to decide how and when it should act in such cases. For example, cases may arise where its own officers are put at risk.
Amendment No. 420 appears to be a replacement for new Section 130B(4) which sets out the grounds on which the court may make an order against a highway authority, although I note that the amendment does not, in fact, delete Section 130B(4). One effect of the amendment would be to remove the court's discretion to make an order if certain conditions were met. Under the Bill as currently drafted, we would expect the court to make an order if satisfied as to the matters set out in new Section 130(4) and if the statutory defence in new Section 130(5) was not met. However, there may be circumstances in which it might be appropriate for the court not to make an order if, for example, it was clear that the complainant had acted in bad faith. The court should have discretion in such cases.
The amendment would also allow for an order to be made if there was a serious dispute as to whether the way in question was a highway or even if the authority had a well-funded programme for dealing with obstructions, was working its way through it, and had added this latest one to the list.
The purpose of Clause 59 is to catch the poorly performing authorities—those who do not take seriously their responsibilities to keep rights of way open for the public. Shortage of funds would not be an excuse for taking little or no action at all. On the other hand, an authority which showed that it had committed reasonable funding and was implementing a fully prioritised strategy to deal with obstructions on rights of way in its area should be allowed to get on with it.
The noble Baroness is right that Clause 59 would not deal with another van Hoogstraten who built a barn over a right of way. But Clause 60 would. It enables a court, when convicting a person of wilfully obstructing a highway, under Section 137 of the Highways Act, to order the person concerned to remove the obstruction. Section 137 applies to all forms of unlawful obstruction.
We do not believe that this Bill is suitable for dealing with problems referred to by the noble Baroness in relation to caravans, which are best handled through the DETR/Home Office guidance to local authorities.

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Finally, we are prepared to consider Amendments Nos. 441A and 538 with a view to bringing forward amendments on Report. However, we would not be able to accept the amendments in their current form because we do not believe it right that a surveying authority which is promoting an order should be entitled to decide whether or not to treat an objection as a bad objection and so avoid further public scrutiny into the merits of an order. Indeed, the amendments seem very widely drawn in that they appear to enable an authority to disregard any representation which it considered was not capable of affecting its decision of whether or not a definitive map modification order was appropriate. It could cover objections which were relevant but to which the surveying authority itself thought no weight should be attached.
If there is to be a filtering process, it should be operated by the Secretary of State or the National Assembly for Wales. It may be possible to avoid the time and expense of a public inquiry if the Secretary of State or the Assembly were entitled to refuse to hold an inquiry or hearing if the only objections or representations were irrelevant. We will look into that further. In the meantime, I hope the noble Baroness will feel able to withdraw her amendment.
I apologise to Members of the Committee for giving such a detailed reply. This is a highly technical area and to have it on the record will I hope, save the House time on Report.
Baroness Miller of Chilthorne Domer: Before my noble friend replies to her amendment, perhaps I may thank the Minister for her response on Amendment No. 441A. It is important. The DETR's estimated annual costs at the moment are around £12.5 million and the extra annual expenditure of removing obstructions is likely to be over £5 million. The time and effort put into this matter therefore is very worth while in terms of the public purse.
Baroness Scott of Needham Market: I thank the Minister for her comprehensive reply, which I shall study carefully in Hansard. I remain concerned that the significant number of obstacles to the rightful enjoyment by the public of their rights of way will not diminish as a result of the Bill. Nevertheless, I take encouragement from the Minister in terms of ploughing and the objections. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendments Nos. 404 to 406:
Page 79, line 10, leave out ("subsection (5) of section 119") and insert ("section 119(5)").
Page 79, line 12, leave out ("that subsection as applied by").
Page 79, line 48, leave out from ("public") to end of line 50.
On Question, amendments agreed to.
Baroness Byford Baroness Byford moved Amendment No. 406A:
Page 80, leave out lines 45 to 47.
The noble Baroness said: This subparagraph in the Secretary of State's regulation-making power is, in my view, a Henry VIII clause. It would enable the Secretary of State to change the appeals procedure without further recourse to Parliament. We feel that it is not in the public interest that he should be able to do so. All changes to appeals procedures should be cleared first by Parliament. I beg to move.
Lord McIntosh of Haringey: I can assure the noble Baroness, Lady Byford, that there is nothing sinister in the regulation-making power in new Section 121E which Schedule 6 inserts into the Highways Act 1980. The current procedures for making and confirming orders creating, diverting or closing rights of way under the Highways Act were not specifically designed for the kind of application and appeals process included in the Bill. It has therefore been necessary to adapt those procedures. We could not replace them with something entirely new because there is overlap between the appeals process and the process of making and confirming orders. We want a regulation-making power merely as a prudent measure to ensure that if, in practice, any procedural difficulties arise, then minor amendments to Schedule 6 may be made.
I hope the noble Baroness, Lady Byford, will be comforted by the fact that the Select Committee on Delegated Powers and Deregulation scrutinised all the regulation-making powers in the Bill. This was one of many which it did not consider required amendment. I hope that that encourages her not to press the amendment.
Baroness Byford: I fear that in this Chamber that would be a terrible thing to do! I thank the Minister for his response and believe that he will understand why concern has been expressed. I am pleased about his assurance that the amendments will be minor. Having tried to tempt him to describe what is "a high level of", perhaps I can tempt him to describe what is "minor". But perhaps that would be unkind and at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 407 and 408:
Page 81, line 16, leave out from ("of") to ("on") in line 17 and insert ("subsection (2) of section 118ZA above (or that subsection as applied by section 118C(2) above)").
Page 81, line 26, leave out from ("of") to ("on") in line 27 and insert ("subsection (4) of section 119ZA above (or that subsection as applied by section 119C(4) above)").
On Question, amendments agreed to.
[Amendment No. 409 not moved.]
5 p.m.
Lord Glentoran Lord Glentoran moved Amendment No. 410:
Page 81, line 32, leave out ("of a prescribed description") and insert ("reasonably necessary for land management which").
The noble Lord said: Schedule 6 extends the scope and length of temporary diversions. We welcome new Sections 135A and 135B, which provide a power for an

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occupier to divert rights of way temporarily in order to prevent danger to the public. However, restricting the right to a period of five days in any one calendar year renders it effectively useless.
In addition, the provision to prescribe the grounds on which such diversions can be made suggests that the power to divert might not in practice be as flexible as it should be in the interests of effective land management.
If an occupier wants to divert a path temporarily he must give at least 14 days' notice to the highway authority; at least seven days in advance of the diversion, publish in a local newspaper a notice that the route will be diverted; display notices during the period of the diversion; and gain consent from a neighbouring occupier if the diversion involves adjacent land. Few occupiers are likely to be willing to incur the costs involved in meeting those requirements for a diversion lasting only five days.
There is a serious need for a temporary diversion procedure but the provisions must allow land managers to divert paths for the period needed to undertake dangerous operations. Equally, the provisions should be flexible in order to accommodate varying land management needs both now and in the future. Operations where temporary diversions might facilitate land management include the thinning or felling of woodland, which may take several weeks. I can think of woodlands where many public rights of way had to be closed after the major storms in 1979 and 1987. They also include the harvesting of coppice biomass crops, which is highly mechanised; building works adjacent to rights of way; programmes of aerial spraying of bracken; harvesting operations involving the intensive use of machinery over cross-field paths or in farmyards where, for example, grain is being transported between trucks, dryers and stores; spraying out the line of cross-field paths; programmes of moor burning; repairing (for example, surfacing eroded paths); pest control (for example, culling deer in woodland); and shooting events, which are perhaps less relevant because they would not take so much time and are covered elsewhere in Part I.
The amendments would extend the provisions by increasing the period to 28 days, providing a proportionate payback in terms of the cost involved in securing diversions. Removing the reference to "prescribed activities" enables the more flexible use of the provisions to meet current and emerging land management needs which could pose a danger to people using rights of way.
We recognise that user groups may be opposed in principle to any diversion. However, provided that they are well managed, as new Sections 135A and 135B require, the alternative routes should be clear and suitable and they should be much safer, avoiding possible risks to users. I beg to move.
Lord Roberts of Conwy: I want to speak briefly to Amendment No. 411, to which I have put my name. As my noble friend said, new Section 135A limits the
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period of diversion to five days in one calendar year. That is for works which may pose a danger to the public using footpaths or bridleways.
The time limitation is totally unrealistic and restrictive. My noble friend gave examples of the kind of work which might be done; for example, the thinning of woodland and so forth. Five days is a very short time to carry out any significant work. I give the example of a footpath running close to a stream which has flooded and eroded the path. The stream bank may require some buttressing so that the path can be restored and the land protected.
Such work will take longer than five days to accomplish. Amendment No. 411 proposes 28 days, which may still be a short time but is more realistic. I dare say that some of my noble friends can produce examples of works which might cause a danger to the public using footpaths and bridleways and which are more apposite and better than my example.
As the prescribed works are potentially dangerous to the public, I should have thought that the persistence of the danger should be the determining factor as regards the duration of a diversion, rather than an arbitrarily fixed time laid down in statute. That is unduly binding. The five-day limit for diversion seems to be inspired by an anxiety on the part of the Government to ensure that a landowner does not abuse the provision to divert a path rather than by genuine concern about the safety of users. I believe that on this occasion the Government can set aside their obsession with wicked landlords because diversions under this provision cannot take place without the permission of an authority.
Furthermore, works of the kind envisaged here and the necessary consequential diversion cannot be embarked upon without a great deal of preparation as specified in subsections (5), (6), (7) and (8). Fourteen days' notice must be given, a notice must be placed in a local newspaper seven days in advance and notices must be displayed in prescribed places.
The preparations seem to be substantial, bearing in mind that the diversion is for only five days. I believe that the period is exceedingly short and hardly worth the effort implied in subsections (5), (6), (7) and (8) and all the requirements therein. The Government would be well advised to look again at the time constraint, otherwise the effect will be to discourage owners from doing necessary works in the vicinity of the footpaths and bridleways. That cannot be of benefit either to the landowners or users of paths and bridleways.
Lord Rotherwick: I too support the amendment. As a land manager and user I have experience of exactly this problem. I give the example of a failing 50-metre dam which needed to be taken down, not just for its improvement but because it caused danger to the users of a footpath. It took considerably longer than five days to erect that dam. I also cite examples of water pipes which are laid the length of footpaths. That is not done to be unhelpful to users but to renovate pipes in poor condition which have always been there. The diversions and closures of footpaths which must be

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made are probably not those preferred by the land manager, and certainly not the user; both want the works to be completed in the minimum time. Therefore, I hope that the Government will reconsider the five-day period and produce something more appropriate.
Lord Northbourne: If the Minister believes that he must retain the five-day limit for the diversion of rights of way when necessary works take place, is he prepared to include highways for vehicular traffic as well? That would be a great service to all of us.
Earl Peel: With reference to Amendment No. 410, I ask the Minister who is to define the words "prescribed description". That apart, I support what my noble friends have said. Such diversions must be based on flexibility and local experience, to which we return again. Clearly, such closures will vary considerably from region to region where there are different land management regimes. I would have thought that the words of Amendment No. 410 in the name of my noble friend Lord Glentoran would well cover the point and introduce the necessary flexibility.
As to Amendment No. 411 to which I have put my name, a five-day period is unrealistically prescriptive. As my noble friend Lord Roberts said, in many cases one is talking about diversions to help the public avoid danger and for health reasons. I have listed one or two items that I believe appropriately describe why such diversions may take place. One of the matters that jumps to mind is bracken spraying. That is a highly toxic operation which sometimes takes a number of days to achieve depending on the prevailing weather conditions. My noble friend referred to the repair of pathways and the thinning and felling of woodland. I hope that the Government will look at this matter in a more flexible and sensible light. Even if they do not accept 28 days, perhaps they will consider an amendment which contains wording such as "for whatever time is deemed necessary to conduct the work in hand", or something like that, to introduce the essential degree of flexibility which is sorely lacking in a prescriptive five-day period.
Perhaps I may make a general observation. On a number of occasions during Committee stage, and quite recently when debating another amendment, the noble Baroness, Lady Miller, appeared to be obsessed that landowners—I believe that she referred to Conservative local authorities—took every opportunity to close or divert footpaths. That is a rather disingenuous attitude. I assure the noble Baroness that, in good faith, certainly all of the amendments to which I have spoken or put my name—I am sure that I speak for other noble Lords on this side of the Committee—have been tabled for very good reason: to protect land management or safeguard the public. I ask the noble Baroness to refrain from continually suggesting that this is being done simply to try to keep out the public. Most landowners whom I know welcome footpaths and the opportunity for people to enjoy the land. Many of us are proud of what we do which the public enjoy seeing. I make that point
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simply because I believe that some of the comments of the noble Baroness indicate an attitude that is contrary to what happens in practice.
5.15 p.m.
Baroness Miller of Chilthorne Domer: Before the noble Earl began the last part of his contribution I was about to rise to support the Conservative amendment, which I still intend to do. I do not support it as a result of his small lecture to me but on the ground of consistency, because I believe that it is right. The noble Earl will recall that at the end of Part I the Liberal Democrat Benches moved amendments which for landowners were less prescriptive about means of access. The Government accepted that if different means of access were proposed that was reasonable. We also moved an amendment relating to the length of time, which was not accepted. Therefore, the noble Earl's remark that these Benches do not bear in mind the interests of landowners where appropriate is somewhat unfair. I refute any suggestion that we do not believe that most landowners make extremely good efforts. Perhaps we are wary of the minority who do not.
In this case we support the Conservative amendment. We believe that, from the point of view of the user, the quality of the diversion counts more than a very short period. It is more important to have a decent diversion for a longer period than to have a five-day period.
Lord McIntosh of Haringey: Amendment No. 410 would remove from the Secretary of State and the National Assembly for Wales the power to prescribe the operations to be covered by the Bill's provisions for temporary diversions. Amendment No. 411 would significantly increase the number of days a year that paths could be diverted. I have listened carefully to then argument that, for example, it is hardly worth a farmer's effort to advertise and signpost a diversion if he can do it for only five days a year.
My starting point is that diversions must be kept to a minimum. After all, when people go for a walk or ride on a public highway they have the expectation that they will not be led off what may be a familiar and much enjoyed route and taken on a roundabout journey. Therefore, it is not in the public interest to allow diversions willy-nilly. I do not say that that is what is provided for in the amendment, but that must be my starting point.
Earl Peel: Perhaps the Minister fails to realise that when a diversion is called for on most occasions one is required to go only a short distance from the existing path. I do not believe that, on the whole, the walker will be seriously inconvenienced.
Lord McIntosh of Haringey: I believe the noble Earl agrees that sometimes that is true and sometimes not. Most of the speeches have been made on the assumption that the only means to create diversions is by the temporary power provided in the Bill. That is not the case. Section 135 of the Highways Act allows

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for temporary diversion for engineering works for up to three months. The difference is that the Section 135 power requires prior approval by the highway authority, but even in that case for the first time in this Bill we have provided an appeal procedure. That situation has existed up until now, but the procedure has not been used to any great extent. We now make it easier for landowners by providing the appeal procedure.
The Ministry of Agriculture, Fisheries and Food has powers to deal with extreme situations like animal and plant disease. Those powers appear to be perfectly adequate for the purpose. When we come to highways, to which the noble Lord, Lord Roberts, referred, Section 14 of the Road Traffic Regulation Act 1984 empowers highway authorities temporarily to restrict or prohibit the use of any road because of works executed on or near it, or because of the likelihood of danger to the public. I sympathise with the noble Lord, Lord Northbourne, in wishing that those responsible would not do it as much as they do. But the powers exist. These temporary diversion powers—I must make this point because it has not been made—are powers that exist without the approval of the authority. These are additional new powers to the existing powers of diversion. My answer to the noble Earl, Lord Peel, is that the regulations will be made by the Secretary of State. It is necessary that these new diversion powers are viewed in the context of existing powers and that the original proposals did not include a right of appeal for Section 135 procedures.
There is no right of appeal against temporary diversions because there is no approval required from the local authority. We think that these additional powers go a long way towards providing the flexibility which land managers have been seeking.
It is right, therefore, to be cautious about the extent of further provisions which impact on the public's use of rights of way. We do not consider that temporary diversions would be appropriate for prolonged operations such as crop growing. We shall consult on the operations to be included in the regulations. But I do not want to start negotiations on that now. However, these new provisions might be appropriate for some of the items listed by the noble Lord, Lord Glentoran; for example, crop spraying, thinning woodland, moor burning and repairing eroded paths.
In almost every respect noble Lords underestimate the way in which additional flexibility and additional powers to landowners are given in the Bill. The additional flexibility has to be tempered. There has to be a balance between the needs of the land manager and the rights of the public. The requirements in the Bill for publicity and signposting are as much in the interest of the occupier of the land as the public. It will be for land managers to decide in each case whether they need to divert a path or whether they can work around it, which at the moment many of them do.
Therefore, I must resist Amendment No. 410. On the issue of the five days, I believe that 28 days is too much for this additional provision. I am willing to consider whether a modest extension to the five days
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provided is appropriate. I do not think I can consider having it for "as long as the works take place", as a number of noble Lords have suggested. That would be a blank cheque.
Lord Roberts of Conwy: Before the Minister sits down, perhaps I may clarify two points with him. First, I appreciate what he said about the nature of the notice to be given by anyone who proposed to act under this provision. But is he saying that when this provision requires a person to give notice of the diversion in accordance with subsection (6), that notice given does not seek permission from the authority concerned? Secondly, can he explain what the situation will be if a farmer has given notice to do work which should be completed in five days and the work continues beyond that time for reasons beyond his control, such as bad weather, snow and so on?
Lord McIntosh of Haringey: I hope I made clear that the answer to the first question is that these temporary diversion procedures do not require permission from the authority. They can be done by notice being given in the way that is described in the Bill. As to the second question, common sense must prevail. If a cliff falls in and blocks the path and it takes more than five days to clear, everyone will understand that force majeure in such circumstances must prevail. I have already said that I am willing to look at some modest increase to the five days.
Lord Glentoran: I thank the Minister for that explanation, and I thank the noble Baroness, Lady Miller, for her support on these amendments. I understand the Government's position in relation to my Amendment No. 410. I still think that increased flexibility would be advantageous to the Bill. I shall not press Amendment No. 410 or Amendment No. 411. However, I should like to speak to Amendment No. 411. I thank the Minister for giving way to some extent and accepting that there is an argument here that he will go away and look at.
Diversions under the Bill have to be a compromise. They will not normally suit everyone. I am certain that 99 per cent of land managers, once they have a right of way in place and it is used as a public highway, are content to leave it. It is a serious interference for them and the general public if the right of way has to be messed about with. They have to go to the trouble of putting the diversion in place and then they have to make arrangements on their own land or somebody else's to put in a diversion. We on this side of the Committee accept the point that diversions are expected to be of the highest quality possible.
I am grateful to the Minister for making the point about Section 135. I refer in particular to the map situation with regard to animal or plant diseases and so on and other ways of achieving diversions or closures. I should like to press the Minister. He said that 28 days is too much. I would just ask, why five days? It is a difficult area. Both sides of the Chamber agree. I accept that the Government will take the matter on board and do their best to come to a reasonable, sensible conclusion.

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I have a final point. Perhaps we should mention in the Bill acts of God—a cliff falling down, as the Minister suggested; the storms to which I referred in moving the amendment; and such like.
Lord McIntosh of Haringey: I am sure that there are tonnes of paper regarding case law on force majeure. If there is anything new to be said I shall write to the noble Lord and other Members of the Committee. But I should be very surprised if there is.
Lord Glentoran: I thank the Minister. Perhaps we shall have to ask the right reverend Prelates for advice on that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 411 not moved.]
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendments Nos. 412 and 412A:
Page 83, line 40, at end insert ("and
(b) in subsection (2)(b), after "17" there is inserted "or 118B(1)(a)".").
Page 85, line 48, after ("State") insert ("including any related decision under section 120(5) of this Act").
The noble Baroness said: I spoke to these amendments with Amendment No. 375. I beg to move.
On Question, amendments agreed to.
Baroness Byford Baroness Byford moved Amendment No. 412AA:
Page 86, line 2, leave out ("(2) to") and insert ("(4) and").
The noble Baroness said: In moving Amendment No. 412AA, I should like to speak also to Amendment No. 412AB. These are clarifying amendments. Section 250(2) and (3) of the Local Government Act provide for the summonsing of witnesses and the administering of oaths in public inquiries. Those provisions are inappropriate for the informal hearings process. Legal representation, the calling of witnesses to give evidence and cross-examination are discouraged in hearings. If witnesses have to be compelled to attend or give evidence under oath, that should take place in the more formal surroundings of a public inquiry. The amendments disapply the provisions in hearings. I beg to move.
5.30 p.m.
Lord McIntosh of Haringey: I am glad that, in introducing the amendments, the noble Baroness, Lady Byford, emphasised the difference between hearings and inquiries. That is the key to the issue.
The amendments would remove from the Bill important powers which would enable an inspector to summon witnesses to a hearing into an order creating, diverting or closing a right of way under the Highways Act 1980. The powers are already available in respect of inquiries because Section 302 of the Highways Act applies Section 250 of the Local Government Act to all inquiries held under it.
The purpose of the provisions in Schedule 6 to the Bill is to apply to hearings the same powers as currently apply to inquiries. The Government's policy
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generally is that a public inquiry will be held unless the promoting authority and the objectors—that is, the parties—agree to a hearing. There are clearly advantages to hearings. They are less formal and less expensive; and I would imagine that they are often quicker. However, there may be occasions when, despite the agreement between the parties, it may be necessary to summon someone who is not a party to the dispute and is not in attendance at the hearing to give evidence or to call for documents in order that a properly informed decision may be made. I do not think that anyone would lose by that. The advantage is that it stays as a hearing without being upgraded to the more formal status of inquiry.
If the amendments were carried, they could require that when a hearing was being held it could be turned into an inquiry even though matters could be dealt with at a hearing more expeditiously. There is plenty of precedent for what the Government propose. There is a similar provision under Schedule 20 to the Environment Act 1995 in relation to certain appeals. Other examples may be found in the Environmental Protection Act 1990 and the Water Resources Act 1991.
I hope that, on consideration, the noble Baroness will feel that this degree of compulsion in a hearing is better than turning it into a full-blown inquiry.
Lord Renton: Will the noble Lord be so good as to explain how the Secretary of State will make regulations to modify? That may mean "amend" or it may mean "repeal". It would be helpful if we could be given some idea of what the method will be. It may be that I have not been zealous enough in tracing from other parts of the Bill how that shall be done. No doubt the Minister will have that information at his fingertips. It would be helpful if we could have an explanation of how the modifying will be done.
Lord McIntosh of Haringey: There is no reference in the part of the Bill we are discussing to modification or regulation. We are discussing paragraph (8), which states:
"After paragraph 2A there is inserted—
"2B.—(1) Subject to sub-paragraph (2), subsections (2) to (5) of section 250 of the Local Government Act 1972 (giving of evidence at, and defraying of costs of, inquiries) apply to a hearing which the Secretary of State causes to be held".
I do not know where regulation or modification comes into it.
Baroness Byford: I thank the Minister for that response. I shall not divide on the amendment but I should like to consider the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 412AB not moved.]
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 412B:
Page 88, line 11, leave out from ("hearings") to ("as") and insert ("held under this Schedule by an appointed person").
The noble Baroness said: I spoke to this amendment with Amendment No. 375. I beg to move.
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
Clause 54 [Application for path creation order for purposes of Part I]:
Lord Whitty Lord Whitty moved Amendment No. 413:
Page 33, line 38, leave out from ("any") to end of line 39 and insert ("local highway authority whose area includes land over which the proposed footpath or bridleway would be created.").
The noble Lord said: This amendment is a technical amendment. Clause 54 empowers the countryside agencies to apply to the Secretary of State or the National Assembly for Wales to make an order creating a public path enabling people to gain entry to land over which they have a right of access. Before making such a request, the agencies are required to take account of any rights of way improvement plans for the area concerned. The amendment merely makes it clear that, where the proposed new path would cross two local highway authority areas, both rights of way improvement plans are to be taken into account. I beg to move.
On Question, amendment agreed to.
Clause 54, as amended, agreed to.
Clause 55 [Effect of Part I on powers to stop up or divert highways]:
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 414:
Page 34, leave out line 27.
On Question, amendment agreed to.
Clause 55, as amended, agreed to.
Clause 56 [Rights of way improvement plans]:
Baroness Byford Baroness Byford moved Amendment No. 415:
Page 34, line 42, at end insert—
("( ) the extent to which local rights of way meet the present and likely future needs of agriculture, forestry and the breeding and keeping of horses,").
The noble Baroness said: As the Committee will be aware, those involved in agriculture and the keeping of land continue to go through difficult times. One of the things the Government have been encouraging them to do is to diversify. Clause 56 requires local authorities to prepare rights of way improvement plans. In formulating those plans, local authorities are required to consider the extent to which local rights of way meet the present and likely future needs of the public. However, it is not clear whether that reference also includes the interests of land managers. They are indeed members of the public. I suggest that that point needs to be clarified.
Clause 56 also requires local authorities to consult various interests in preparing improvement plans, but there is no specific provision for consultation with individual land managers or with bodies representing their interests, such as the CLA, the NFU and FUW. There is merely a catch-all reference in Clause 57(1)(f) to "such other persons" as may be prescribed. There is a risk that the interests of land managers will not be effectively taken into account.
There is no dispute about the need for improvements to the network; for example, the creation of new circular paths, to which we shall be coming shortly, or links with bridleways to take horses off busy country lanes. We are simply concerned that the authorities may not bother to consult land managers or their representative bodies over their plans because they are not specifically required to do so.
The risk is a real one. As the Bill stands, authorities keen to minimise the costs associated with rights of way improvement plans could simply consult only the interests listed in or prescribed under Clause 54. Furthermore, the draft guidance prepared by the Countryside Agency for local authorities in relation to rights of way improvement plans does little to suggest that land managers will in practice be involved. The guidance makes much of the need to assess how much the rights of way network meets the current and future needs of the public, its relevance to today's society and how best to meet the needs of horseriders, cyclists and the less mobile. While the reference in the guidance to the legal obligations of the authorities to their need to have regard for the interests of agriculture and forestry is helpful, it falls short of a cast-iron assurance that those interests will be properly considered.
This amendment would put beyond doubt the need for local authorities to pay due attention to the needs of land managers when preparing their rights of way improvement plans. I beg to move.
Lord Northbourne: I rise briefly to support the amendment because I hope that the Minister will take positive note of it. My objective in the debate has been to try to minimise any friction that may occur between landowners and operators on the one hand and the needs of walkers on the other. For that reason, I believe that this amendment is essential if we are to ensure that those who take the decisions on new rights of way shall at least understand the problems of landowners.
Perhaps I may take a minute of the Committee's time to give a practical example of which I have been extremely aware in my career. Around 20 years ago, my farming enterprise moved into the area of producing salad crops. The modern way of producing such crops is to plough rows of beds longitudinally across the field. Those beds then have to be irrigated by systems which walk, as it were, across the field down the lines. One can imagine how inconceivably complicated it would become if a path was drawn diagonally across such a field. Irrigation systems are extremely expensive to install, so it would be important, in a circumstance where a right of way was to be created over a piece of land where such an operation was being undertaken, to hold discussions on what the possible future implications might be in terms of the rotation of crops which might bring into row crop production pieces of land which were resting at the time or under another form of culture. I give this example as a practical illustration of the problems we face here.
Lord Hardy of Wath: I can see the point of consultation and the case which has been made to

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ensure that sources of friction are avoided. To that end, I certainly do not seek to create friction with the point that I wish to make.
The reference by the noble Baroness to horses has caused me a tinge of anxiety. In my time I have seen a good number of footpaths become scarcely passable, in particular following bad weather, because people have turned those footpaths into bridleways. It will not be possible for many footpaths to accommodate the increasing number of horses which may follow the Government's policy of urging farmers to diversify into this area. Nevertheless, I would prefer to see farmers diversifying into horses rather than establishing puppy farms, which some farmers did on the advice of the previous government.
If we are to take a favourable view of an expansion in horseriding—it is a healthy activity—I trust that we shall not see any move to encourage the conversion of footpaths into bridleways, especially where footpaths are not suitable for that purpose.
Lord Addington: I rise briefly to ask whether this amendment is in any way necessary. Consultation forms a part of the process. Furthermore, what kind of local authority would not take into account genuine economic uses of land? If the amendment is accepted, I believe that we would be creating even more of a lawyer's paradise than has already been done.
Baroness Strange: I should like to support this amendment. As the noble Baroness, Lady Byford, pointed out on Monday, rights of way historically came into being between points A and B because there was a need for them. In former times they served the need to go to church, to school or to the local shop by the shortest possible route. With the coming of railways, travel by foot, pony trap and horse and carriage was superseded by train travel. Rights of way were then created which approached the nearest railway station. With the arrival of the internal combustion engine, everything changed again. Nowadays people rarely go to church, but if they do they go by car. Children travel to school by bus or use the local taxi and people go to the supermarket or even to the local shop by car. As a result, local railway stations have closed down.
Such rights of way are rather like the three boxes of string bequeathed to us by my grandmother. One contained long bits of string, one contained short bits of string, while the third box contained bits of string too short for further use. I believe that these rights of way are like the third box of string.
5.45 p.m.
Lord Whitty: I shall have to consider the point made by the noble Baroness as regards the third box of string and work out what it means. However, I do not think that the provision sought by the amendment is necessary. We are not considering individual rights of way here but rather rights of way improvement plans.
We fully accept that the needs of agriculture and other economic activities in the countryside need to be recognised by local highway authorities when
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developing their plans. Perhaps I may offer the noble Baroness the assurance that she seeks by saying that it is certainly our intention to ensure that all the major bodies representing land managers, users and others with an interest in the land are consulted by highway authorities during the preparation of the improvement plans. Among other things, Clause 57 empowers the Secretary of State to prescribe consultees in regulations, if that is required.
At present, local authorities are under no obligation to take a strategic overview of the quantity and quality of rights of way in their areas. That is why we have proposed improvement plans—to fill a major lacuna in extant rights of way legislation. Clause 56 aims to fulfil that.
The purpose of the clause, therefore, is to require local authorities to do a little thinking about how they wish to develop, improve and modify rights of way for the benefit of the public as a whole. Furthermore, we recognise that this applies to all local authorities, not simply those highway authorities which deal with rural areas. Land managers are members of the public—they are significant members of the public in many of the relevant areas—and their needs will have to be taken into account by authorities when drawing up their plans according to the provisions already laid down in the Bill.
Authorities will also be required to have regard to the statutory guidance, in which attention will be drawn to the importance for the local economy of a comprehensive and well managed network of rights of way. That means that they must consider the needs of local businesses, local farmers and land managers who are diversifying into tourist related activities as well as the more traditional pursuits. I believe that all this will be covered both by the clause as it stands and by the regulations that will be made under it.
As regards individual rights of way, we have of course dealt with that matter previously. It will be necessary for local authorities to be more specific about land management in particular. To that end, earlier clauses stipulate the need to have regard to the needs of agriculture, forestry and—as a result of an amendment adopted during a previous Committee sitting—the keeping and breeding of horses. But the plans themselves will also be concerned with wider issues. For that reason, if we were to prescribe land managers, it would become necessary to prescribe various other groups.
Perhaps I may assure the Committee that land managers will be covered by the consultation process. It is also the case that under Clause 57(2), having published a draft plan, authorities will be required to consider any representations made as regards the draft. Thus, both on consultation and on the basis of the draft plan, land managers will have the means to influence those decisions. I hope that, with those reassurances, the noble Baroness will not pursue her amendment.
Baroness Byford: I thank the Minister for his full response. I accept his assurances. I am grateful to him

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for adding that those concerned will have an opportunity to look at the improvement plans and, where necessary, to appeal against them.
I was going to thank the noble Lord, Lord Hardy, for his contribution but, given the vein of his remarks, I am not sure that I should. We missed the noble Lord on Monday when we had serious debates about the way in which some of our footpaths and bridleways are currently being spoilt. When he has an opportunity to read Hansard, he will find that we had a good debate on that issue.
I thank other noble Lords for their contributions. I should say to the noble Lord, Lord Addington, that this is not intended to be a lawyers' paradise. It is a sincere attempt to ensure that the people on whom the general public rely for their rights of access are not short-circuited when the improvement plans are brought forward.
Having had those assurances from the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Northbourne Lord Northbourne moved Amendment No. 416:
Page 34, line 44, at end insert—
("( ) the desirability of providing opportunities for regular exercise in the interests of public health including the availability of circular walks and cycle tracks easily accessible to residential areas,").

The noble Lord said: The amendment concerns the health of the nation. It concerns giving more people the opportunity to benefit more often from regular, health-giving walks and cycle rides. It seeks to require local authorities, when preparing their quinquennial rights of way improvement plan, to consider the desirability of providing opportunities for regular exercise in the interests of public health, including the availability of circular walks and cycle tracks easily accessible to residential areas.
The Government pride themselves on their concern for public health. If I were them, I would have put access and exercise at the very heart of the Bill. Recent research has shown that more than 70 per cent of the population take less exercise than they need for their own good. Opportunities for exercise need to be attractive to people; they need to be pleasant and they need to be accessible to the places where people live.
To make clear to the Committee the importance of exercise—and particularly walking for health—I can do no better than to quote Dr William Bird of the Sonning Common health centre, which has been seminal in addressing this subject. He is a pioneer and member of the access forum. In a recent letter to me he said, inter alia,
"Perhaps without realising it, this Government has the potential in this Bill to create the most important public health change since the Clean Air Act 1953. In fact, the health benefits to society and to the NHS could probably be greater. Increasing physical activity from sedentary to walking two or three times a week halves the risk of having a heart attack, a stroke or of developing diabetes.
"In fact, lack of exercise is as important a risk factor for heart disease as smoking, high cholesterol or blood pressure, and it affects twice as many people as all the other risk factors added
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together. Exercise also significantly increases the length of time an older person remains independent by reducing the risk of falling and fracturing a hip, among other things".
He goes on to say, rightly or wrongly, that,
"There is no argument to suggest that health will somehow improve with the wording of this Bill as it is. It won't. One clause must be added to the statute book and then Britain will be the envy of every other Western nation trying to tackle the epidemic of physical inactivity".
Amendment No. 416 would place health at the heart of the Bill. It would require local authorities to consider providing opportunities for regular exercise in the interests of public health when they are preparing their rights of way improvement plans.
I believe that the Minister may say that there is no need for this amendment because authorities are already required to consider the needs of the public. With respect, I disagree. As the Bill is drafted, there is not a single mention of health. With the wording of the Bill as it is, some local highway authorities will take health into account in preparing their plans—but a considerable number will not. Indeed, those who do not want the expense and sweat involved will simply ignore the issue of public health. As far as I can see—the Minister may correct me—there is nothing in the Bill that enables the Government to prevent them from doing that. There is nothing in the Bill to persuade them or force them to take health into account in preparing their plans.
I suggest that, in view of the importance of health to the nation, to the taxpayer and to each of us, the amendment should be accepted. The desirability of amending the public rights of way to benefit the health of the nation should not be left to chance. I beg to move.
Baroness Strange: I support the amendment of my noble friend Lord Northbourne. Anyone who is the least bit interested in health—and most of us over the age of 21 are—will know that there are three essentials for a long, healthy life: a clear conscience, a healthy diet and a reasonable amount of exercise, both mental and physical. Many Members of the Committee fulfil all these criteria. In regard to the third criterion, I think the Committee will agree that there is nothing better, nicer or healthier than walking in the countryside in the open air—provided, of course, that you can do it with a clear conscience and do not destroy or spoil someone's livelihood.
Many people like circular walks because they do not need to retrace their steps through the same scenery. We should be creating circular paths for the future health of our nation.
Baroness Nicol: Many Members of the Committee are smiling kindly about the amendment. I think it is an attractive proposition. I suspect there will be very few places where this can be done, but I see no harm at all in drawing the attention of local authorities to the attractions of circular walks, so that where it is possible to create them they will at least consider the possibility of doing so.

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Circular walks are attractive to many people because, as the noble Baroness said, one avoids the necessity of having to retrace one's steps, which can be very boring; or, alternatively, the necessity of having to find transport or an unmarked way back.
I hope that some thought will be given to at least putting on record the thought behind the amendment so that local authorities are reminded of the possibility.
The Lord Bishop of Blackburn: There is no doubt that the work of Dr Bird has been seminal in this area. The ideas and practicalities that he has worked out at his own health centre certainly deserve support. He has passionately pursued the issue with the Countryside Agency, the National Access Forum, the British Heart Foundation et al.
I do not have a problem with the first part of the amendment—that is,
"the desirability of providing opportunities for regular exercise in the interests of public health".
It is important to put that on the face of the Bill. However, when it becomes prescriptive about circular walks and cycle tracks, that is one step too far—although I support the comments of the noble Baroness, Lady Nicol, about the desirability of circular walks.
When the Minister replies, I hope that he will give some encouragement for the work to continue, and an indication that a nudge of this kind may be included in the legislation.
Baroness Warnock: I support the amendment. Quite apart from the question of public health, which is important, it seems to me that the enormous majority of people who want access to the country prefer fairly short circular walks of three or four miles. In my part of the country—east Wiltshire—these walks are extremely popular, as indicated by the number of books and maps with titles such as "Six Walks Around Marlborough", or something of that kind. In fact, one does not see many people on these walks, but I think they are what people want—far more than they want access to wild parts of the country that cannot easily be reached except by using another form of transport.
I am strongly in favour of including in the Bill a provision for the creation, wherever possible, of circular, fairly short walks. Such provision would no doubt have a spin-off in terms of public health. But whether that should be the first motive, or whether it should be to satisfy what I am sure is a real desire on the part of people, I do not mind.
6 p.m.
Lord Renton: The idea that townspeople should have the advantage of the countryside is an ancient idea and principle but it has never been adequately implemented. Indeed, nearly 2,000 years ago a Roman senator pleaded that there should be rus in urbe. But we now have towns where there is no park and no easy access to the countryside. We ought to be observing that principle.
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From time to time, the principle has been observed. I was delighted to hear the noble Lord, Lord Northbourne, refer to the Clean Air Act, which I took part in piloting through another place in 195:3. In London, the parks are a help to many people; but there are parts of London where there is no access to the countryside without travelling a long distance. We should conscientiously try to implement the principle put forward by the noble Lord and the noble Baroness, and this Bill offers the opportunity. Admittedly, it is a countryside Bill, but there is no reason why it should not be blended with the need to give townspeople the advantages of the countryside so far as possible.
Earl Peel: I, too, support the amendment moved by the noble Lord, Lord Northbourne. It was interesting that time and again during the consultation process representative groups and individuals commented on the need for a proper footpath system near to areas where people actually live. Circular walks received particular mention.
I am certain that opening up large tracts of open land will appeal to a certain type of person and that more people will begin to enjoy the opportunities afforded to them. But many, I am certain, will seek opportunities nearer to home, and the amendment goes some way towards addressing that need. Whether such proposals will lead to a clear conscience, as was suggested by the noble Baroness, Lady Strange, I do not know. That apart, I strongly support what the noble Lord has said.
Lord Renton of Mount Harry: I, too, support the amendment moved by the noble Lord, Lord Northbourne. It is a well-known fact that the deterioration in health in this country is in large part due to lack of exercise. Anything that can be done to encourage those who live in towns to go out into the countryside and take more exercise is for the better.
I declare an interest as chairman of the Sussex Downs Conservation Board. The board has made a strong move in recent years to develop what the noble Lord, Lord Northbourne, rightly described as circular walks. Under the heading, "Take your bus for a walk", we have put out a number of leaflets, for example, to those living in Brighton, showing how they can take a bus out of Brighton into the Sussex Downs, get off the bus, walk through the Sussex Downs for three or four miles, possibly stopping at a pub on the way in the middle of a walk—which I am sure would also be good for their health—and then return to the bus stop or another bus stop and thus return to Brighton. These have been extremely popular, and we are in the process of increasing the number of leaflets that we produce.
I follow up the point made by the noble Lord, Lord Northbourne, and the noble Baroness, Lady Strange, in introducing the amendment. I very much hope that this proposal will find favour with the Government and that some provision along these lines will be inserted in the Bill.
Baroness Masham of Mon: I hope that smooth surfaces for wheelchairs and pushchairs will be

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planned for circular walks if they become popular. People in wheelchairs who have disabilities have to keep themselves fit in the community, perhaps even more than those who do not have a disability.
Baroness Carnegy of Lour: There is one point in favour of the amendment which no one has mentioned—possibly because it is so obvious. Many people from towns and cities visit more remote areas, but they go there in their cars, they congregate at a picnic place, they sit down and have a picnic and may then walk 50 yards up a hill or along a road; they then go back to their car, go home and say that they have had a day in the country and have thoroughly enjoyed it. It certainly does not help their health, and they miss a lot too.
The kind of invitation suggested by my noble friend Lord Renton and the noble Baroness, Lady Warnock—an invitation possibly to choose between several circular walks, with documentation describing what can be seen there and mentioning points of interest—is an attractive one. It might induce people who visit an official picnic place and feel that they have seen everything that there is to see in the wilder countryside to expand their horizons. I hope that the Government will take this idea on board in some way and that if they do not accept this amendment they will frame one which encourages this kind of activity.
Lord Greaves: I support the amendment, with two cheers rather than three—which I shall explain shortly. Its content is positive. This clause, dealing with rights of way improvement plans, is the only provision in Part II of the Bill offering positive encouragement to walkers, riders and cyclists to believe that there is indeed an intention to improve the rights of way network rather than look for ways of restricting it, making it smaller, reducing the status of rights of way with higher rights and so on.
As I said earlier, there is a general view among many organisations and among many users of countryside rights of way that Part II of the Bill contains little for them and that its purpose is possibly to provide a sop to landowners, who will clearly have their rights over the land that they own reduced under Part I. Whether right or wrong, that view is widely held among ramblers, riders and so on. It is important that the final version of the Bill should give encouragement to people and offer a clear indication that that is not the case. The amendment provides a positive statement of the purpose of rights of way improvement plans. To that extent, it is valuable.
Circular walks have been discussed. Being slightly pedantic, one might say that they could be triangular, rectangular, rhomboidal or whatever, and it does not really matter. The point is that they do not have to be circular. They could be linear, if we are talking about areas within reasonable reach of urban areas where public transport can be provided to drop people at one end of a walk and pick them up at the other end.
My first introduction to the countryside was with my old aunt—at least, she was not old in those days—whom I would describe as a Manchester rambler. We
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used to get on the train at what was called "London Road Station" in Manchester and visit the Peak District. We would get off the train at one station and walk. At the end of the day we would return by train from a different station. There were special ramblers' tickets available in those days which allowed people to do so. That is an idea that local authorities and highway authorities should consider when looking at rights of way improvement plans.
Those authorities should be taking a positive view of these improvement plans; for example, they should be considering how they can improve the rights of way network, and the services associated with them, in order to provide people with the kind of open-air recreation that we are discussing. I am delighted to find that, on this issue at least, the noble Earl, Lord Peel, and I are absolutely on the same side.
The amendment also talks about "cycle tracks". I should declare an interest in that I have a bike and I use it. I can often be seen puffing miserably as I cycle up the Pennine hills and then recovering somewhat as I ride down the other side. The cycle way network in this country is abysmal. Improvements have been made recently in different places, but, in general, it is abysmal. That is true in urban areas, on the fringes of urban areas and in the rural areas. As part of the work that local authorities and highway authorities will undertake following the passage of the Bill, I hope that a much more sustained attempt will be made to improve cycle ways—not just the long-distance ones that organisations like Sustrans are considering, but also local ones.
I had my eyes opened during the summer of last year when I spent part of my holidays cycling across France, which was a fascinating experience. I was absolutely astonished by the standard and quality of cycle ways in many of the areas of France that I visited. Indeed, it really puts this country to shame. Those are the two cheers.
I should like to give the amendment a third cheer, but I shall not. That is because of the absence in it of any reference to bridleways. I am not a horse rider, although I have done enough in my life to know which end of a horse is which. However, I would not describe myself as a rider. The refrain that I am certainly getting from the horse riders to whom I have spoken about this Bill—and, indeed, from the bridleway organisations—is that there is nothing in the Bill for them. That is a constant refrain. The Government really must take this issue seriously.
The first bullet point on page 7 at paragraph 2.2 of the Government's original consultation paper, Improving Rights of Way in England and Wales (published in July last year) referred to,
"encouraging the creation of new routes, including more provision for cyclists and equestrians".
It is not very clear where such "new routes" for equestrians are to be found in the Bill. There is a view in some quarters that horse riders are fairly well off in general; that they can look after themselves. Some people in my area consulted one of the local Members of Parliament. They were told that if they wanted to ride horses it was up to them to buy their own land.

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The kind of proposals put forward by the noble Lord, Lord Northbourne, should also apply to bridleways. I say that because 25 per cent of horse riders have an annual income of £10,000 or less, 80 per cent are female and over half of them are under 25 years of age. We are talking about a very important and significant section of the population. At present, bridleways make up only 20 per cent of the network. In the mid-Pennines, my part of the world, the figure is a great deal less.
If a proper bridleway network is to be provided, the rights of way improvement plans that local authorities will develop must tackle not just circular walks and cycle-ways; they must also tackle the major problem of the creation of bridleways. There is a fear that, after this legislation is passed, many arguments will take place rather more vigorously and quickly than has hitherto been the case about the status of routes, and so on. Many people—led, perhaps, by some landowners—may try to downgrade existing bridleways and turn them into ordinary footpaths. We need to see a positive programme from the Government as regards these rights of way improvement plans in the Bill along the lines put forward by the noble Lord, Lord Northbourne. That programme should include not just footpaths and cycle-ways: it should also include bridleways.
6.15 p.m.
Lord Wright of Richmond: I should also like to express my support for the amendment. I hope that Members of the Committee will allow me to take a few minutes to commend the example set by Luxembourg, where I lived in the 1970s. At that time, Luxembourg had already published information on well over 100 circular walks that could be taken in that very small country. Such documentation showed not just the point at which one could join the walk by public transport or by car—and where there was a car park, a railway station or a bus station; nearly all of it specified picnic areas so that one could take one's picnic to a certain place and then go on a circular walk of the length of your choice. However, not content with the "exercise advantages" of a circular walk, the Luxembourgers also put in many of those walks what was known as a "fitness parcours", which is an exercise place where, if one had not taken enough exercise, one could take a little more.
Lord Hardy of Wath: I shall be brief. I was pleased to learn about Luxembourg. My local authority has been issuing circulars describing walks in its area for quite a long time; indeed, I believe that the first of these was published about 10 years ago. My concern at this stage relates to cycling. I worry about children cycling on main roads. The noble Lord, Lord Greaves, is a great deal braver than I because I would not wish to cycle on a British highway these days. Parents often buy their children bicycles, but they do not want them to ride them on main roads. Indeed, they want them to stay very close to home in the housing estates, and so on, where the neighbours complain that they are a nuisance.
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However, that is not perhaps a problem for this particular Bill. We need to have areas where children can cycle safely, but that would not necessarily be in the countryside some distance from their home; or, indeed, on the major roads. A contribution towards ensuring safe cycling could be provided in this Bill, but I do not think that the sole answer to the problem lies within this legislation. We should certainly be promoting child health. As one noble Lord said, children are now less fit than they have been for many years. If they are to burn up the calories provided by junk food, we must find ways for them to exercise. This Bill can make a contribution, but other Bills must also make contributions to that effect.
Baroness Miller of Chilthorne Domer: I rise to speak to Amendment No. 443A, which has been grouped with Amendment No. 416. My amendment reflects several issues mentioned by noble Lords. I am glad to have been able to listen to the contributions to the debate. The place for such facilities is very much a matter for the Bill. My amendment is based upon the very strong requests from the Cyclists' Touring Club and the British Horse Society that this Bill should do something for them.
When we raised the issue of cycle tracks on the previous Committee day, the noble Lord, Lord McIntosh, said:
"A cycle track is a specific kind of right of way … In the rest of this part of the Bill we are dealing with rights that have existed back into the mists of time".—[Official Report, 9/10/00; col. 61.]
He went on to suggest that that was not the right place to deal with cycle tracks. But if we are dealing with the rights of way improvements plans and a real network, we need to deal with all rights of way at the same time.
I am sure that many noble Lords are aware of this, but, for those who are not, I should remind the Committee that it was the Countryside Act 1968 that gave cyclists the right to ride on bridleways for the first time, provided that they gave way to walkers and riders. Since that time, cycling has grown apace. I am very pleased about that development. However, one of the spin-offs is that some of our bridleways are literally being tarmacked over. Moreover, the verges that many riders have used to get off the road and out of the way of cars are also disappearing under tarmac, as the verges are used for cycle ways. Yet riders frequently have no right to use those cycle ways.
The Government may say that local authorities in designating cycle tracks can specify that they are to be used by horse riders too. However, my amendment makes it absolutely plain that, where the access authority agrees—I draw the Minister's attention to that point as there will obviously be occasions when the measure is not appropriate—both riders and cyclists should have access to bridleways and cycle tracks.
One of the main tenets of Part II is to promote exercise and health, as the noble Lord, Lord Northbourne, said. People's health is improved by taking exercise on pathways that are not used by cars. That applies to pedestrians, horse riders and cyclists.

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As my noble friend Lord Greaves said, there is little provision in the Bill for these groups at present. Cyclists support the view of the British Horse Society that cycle routes should be made available to horse riders. There will obviously be much discussion as to who will give way to whom. However, I hope that the Government will not use that as an excuse to do nothing about the matter. The Minister assured us that much public money will be spent on improving the rights of way network. Bridleways should be used by as many people as possible, as should cycle tracks. The fact that up until the present the latter have not been included in the legal framework of the definitive map should not mean that we perpetuate them as a completely different part of the network. The network should cater for everyone and seek to keep people off the roads.
Baroness Mallalieu: I support what others have said about circular walks. I suspect that will be the provision that affects most people. I also support Amendment No. 443A in the name of the noble Baroness, Lady Miller of Chilthorne Domer.
Our present bridleway network is painfully inadequate and is becoming more so day by day. As the noble Lord, Lord Hardy of Wath said, some riders are consequently taking to footpaths. That can lead to conflict. As we all know, recreational activity on the part of riders is a vast and growing part of the rural economy. I understand that there are now some 3 million horse riders in England and Wales, the vast majority of whom—as the noble Lord, Lord Greaves, has already said—own no land and therefore have to ride on bridleways, tracks and roads. I think that it is right to say that only 20 per cent of the current rights of way network is at present open to riders. Unfortunately, the expansion in riding has also coincided with a vast increase in road traffic, particularly on country roads, with consequent increased dangers for both animals and people. Some eight horses are killed every day on the roads, not to mention the people with them who are killed and injured. The one thing we should try to achieve in the Bill is to get those people off the roads and on to paths.
Other Members of the Committee have made my next point. I believe that many people are disappointed with the Bill, particularly in relation to its limited proposals for removing the growing number of riders and horses from the roads. The noble Baroness's amendment provides an opportunity to do that.
As I understand it, £200 million is to be spent on establishing the national cycle network. Surely the principle of value for money, which we are told should apply to government legislation, should dictate that the routes we are discussing should be used by people other than cyclists. They should also be used by walkers and riders.
I give one brief illustration of the increased difficulties which the national cycle network is causing. On the A39 which, as some Members of the Committee may be aware, runs in part from Minehead
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to Carhampton, there is a great deal of heavy traffic. The road comprises, for the most part, one lane in each direction. There is no alternative bridleway for a horse rider to take. The verge which was used has been turned into part of the national cycle network and tarmacked. Horse riders are no longer allowed to use that particular part of the track. The remaining part of the verge is inadequate. Therefore horse riders are effectively forced back on to the road. It cannot properly be argued—although I know that it has been by some—that horses damage tarmac but, as regards the national cycle network, sections of bridleways are being tarmacked (and rightly so) where they are to be used by cyclists.
I hope that the noble Baroness's amendment will be accepted as I believe that it would go some way to mitigate the considerable disappointment of riders if the provisions of Part II are not improved.
Baroness Carnegy of Lour: The noble Baroness made an absolutely fascinating speech on a topic that she knows so much about. She mentioned the figure—which I find astonishing—of 3 million people in England and Wales who ride horses. Does she know how many of those people hunt?
Baroness Mallalieu: I understand that something of the order of 250,000 people hunt on horseback. Of course, at least twice that number hunt on foot, bicycle or in cars.
Lord Rotherwick: I apologise for entering the discussion on the amendment at a late point. I support the amendment and all that the noble Baroness, Lady Mallalieu, said about horses. However, I do not totally agree with what she said about horses not damaging tarmac. I have certainly had tarmac badly damaged by horses wearing competition studs.
As a land manager I have observed the progress of a recently created circular walk which was highly contentious when established. However, it is of tremendous benefit to the local community. From my observations of that circular walk I believe that a proper code of practice needs to be established. I have seen galloping horses on the footpath disturbing walkers. Those horses are not meant to be on that footpath. I have also seen cyclists behaving in an undesirable fashion.
With the much needed increase in the footpath network, I hope that certain disciplines will be enforced on the people using it. If more rights are to be given to footpath walkers—we agree with that—those should also entail responsibilities. It is all very well to talk of a wonderful new footpath network, but there is a requirement for year on year funding. I am afraid that the footpath and cycle networks in this country are woefully lacking compared with those on the Continent. Our networks are especially inferior to those in the United States. I support the amendment but I am interested to know from where the year on year funding will come.
6.30 p.m.
Lord Addington: I speak to Amendment No. 416A as it relates to ground covered in this debate. I hope that that will be for the convenience of the Committee. It gives the power to create new footpaths which will link in with existing paths and ensure that certain paths are accessible to those with mobility problems—for instance, partial sight or other physical restriction.
The amendment ties in with Amendment No. 416 and relates to those who are often excluded by small changes in their physical environment. Indeed, the noble Baroness referred to improved surfaces so that someone in a wheelchair, or those pushing a child's buggy, have access. An elderly person, or someone recovering from an illness, will be able to use the facility. If those individuals wish to progress to more demanding walks such a facility would be a good first step. Amendment No. 416A ties in with the debate on Amendment No. 416 if we consider the issue in a holistic manner.
I think that the noble Lord, Lord Northbourne, has missed a trick. It would have made more sense to include this provision in the Long Title of the Bill. In this debate we seek to make new footpaths more accessible. I hope that my amendment will gain a fair wind from the Government.
Baroness Byford: I thank the noble Lord, Lord Northbourne, the noble Baroness, Lady Miller, and the noble Lord, Lord Addington, for their contributions to the debate. We have discussed the issue for nearly 40 minutes. I think that it reflects how important we consider the provision of the facility for exercise.
The noble Baroness, Lady Strange, said that all of us over the age of 21 would need such provision. I suggest that that need starts from the cradle. Good health starts when one is very young. We "oldies" should encourage those younger than ourselves. My grandchildren are taken on as many walks as possible around the countryside. It is an important issue, not just for adults, but also for children. I am not telling the noble Baroness off; I believe that it is such an important factor.
In his introduction, the noble Lord, Lord Northbourne, referred to the British Heart Foundation. I, like one or two other noble Lords who have had the unfortunate experience of having a heart attack, know how important walking is. Having left hospital, one is a little hesitant to go too far. Building up those walks is important. I walked for half a mile, a mile and then a mile and a half. It is an important issue on which the Committee will reflect.
The noble Lord, Lord Hardy, touched on cycling, which I enjoy (when we are not debating in this Chamber!). I understand the worry of some parents about the safety of their children when out riding. Wearing helmets is part of their security. That is an important issue to which we shall return.
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I have to go back to square one. The original aim of the Bill was to give greater access to walkers. One of the difficulties facing the Government is that there may not be sufficient provision in the Bill for horse riders and cyclists. When the Minister responds perhaps he will cover that point. I should declare an interest as an ex-rider of horses; I am now retired from that activity. In many areas we are lucky enough to have reasonable access to rides. But close to my home is a farmer who has diversified. He now has about 50 horses. They are his main income. Those horse riders are completely dependent on the rides available. It is quite a problem. The farm is not on the main A13 but even on our country lanes some people pass at worrying speeds. We must not lose sight of that.
My noble friend Lord Peel mentioned the need for footpaths near to where people live. Members of the Committee have referred to that. Perhaps I may say to the noble Baroness, Lady Mallalieu, that many individuals are disappointed that the Bill does not contain provision for riders. But as I said, I suspect the Bill was never designed to cater for such facilities. On Second Reading, I think in another place, the Minister referred to that and suggested that at a later stage the Government would come back with some provision for horse riders and cyclists. The Minister may wish to comment on that. I agree with noble Lords that this improvement plan gives us the opportunity to look much wider. When the noble Lord winds up I hope that he will be able to do so.
I return to the question of footpaths. I remind the noble Lord, Lord Greaves—I am concerned about the narrowness of his view—that many landowners (I cited the example of my own farm) are now in negotiations with MAFF to open up new public paths.
Lord Greaves: Perhaps I may reassure the noble Baroness that my point of view is not narrow. I welcome the moves in this direction. Catering for the needs of walkers and riders in the countryside is a means by which farmers and others will be able to make a living.
Baroness Byford: I appreciate the noble Lord's interjection. It is not just the question of footpaths being restricted but the creation of new paths.
It has been an excellent debate. I thank the three noble Lords who have made it possible. I commend the amendment.
Lord Whitty: As the noble Baroness says, it has been a good and wide-ranging debate, much of which I agree with. At the end of the day I am not sure that any of these amendments are the best way to achieve noble Lords' aims.
As regards public health, I have some sympathy with what the noble Lord, Lord Northbourne, says. Indeed, my own doctor told me yesterday that I should take more regular exercise and not be stuck in the House of Lords all night! We consider that the public health dimension is covered effectively by the reference

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in the clause to open-air recreation. That covers this aspect of public health. Public health more broadly is not addressed by providing rights of way.
Many of the provisions in the Bill will have the effect of improving health. However, the way in which it should be addressed by individual authorities in individual cases needs to be kept reasonably flexible.
There are a number of topics. Perhaps I may address the issue of circular walks. Circular walks may or may not consist entirely of rights of way. Some of the paths which make up circular walks may well be permissive paths rather than rights of way. Clearly, the Bill already requires local authorities to consider the adequacy of existing rights of way. The question of circular paths comes into the likely future needs and therefore should be covered by the improvement plan. There is a problem in specifying circular walks and nothing else—quite apart from the geometric quibbles of the noble Lord, Lord Greaves. A number of other desirable forms of walk have been referred to: access to public transport which connects with where people live; connecting with viewpoints and other attractions; and access for the disabled, which is partly covered in the next clause. Those are all desirable types of walk. If we specify circular walks and nothing else, there is the danger of that being too restrictive.
We intend that the Secretary of State's guidance under this clause should contain clear advice that authorities should create circular walks or, where appropriate, circular routes; and there will be other provisions dealing with the other desirable types of walk. But if one limits it to that aspect, there is a slight difficulty.
We recognise that there are many factors which local authorities will have to take into account when developing their improvement plan. If one puts particular weight on circular walks, there could be a problem of exclusion of other issues.
By cycle tracks we mean highways with a right of way for pedal cycles with or without a right of way on foot. Although we focus on access by foot in the first part of the Bill, rights of way include those for horse riders, cyclists and, indeed, vehicular traffic. The issue becomes more complex in this part of the Bill.
As the Bill is currently drafted, cycle tracks, with or without a right of way, may not be covered by the definition of "local rights of way" and would therefore be excluded from the rights of way improvements plans. We want the interests of cyclists to be properly represented in the Bill. We can see the sense in making sure that cycle routes are included. We agree that other countries such as France may have a better balance, although we have made substantial improvements to our network over the past few years. We are prepared to consider an amendment to extend the definition to cover cycle tracks.
However, there is a possibility of conflict between horse riders, cyclists and walkers. I shall come back to that. The point raised by the amendment of the noble Lord, Lord Addington, and by the noble Baroness,
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Lady Masham of Ilton, is in part covered by Clause 56(2), which requires local highways authorities to assess
"the extent to which local rights of way meet the present and likely future needs of the public".
Clause 57 relates particularly to the needs of people with mobility problems.
Lord Roberts of Conwy: Will the Minister say more about what the Government have in mind for people with mobility problems? I am sure that he is aware that catering properly for people with mobility problems will be very costly, with the need to remove stiles and make other changes. Do the Government have a plan?
Lord Whitty: As the noble Lord, Lord Addington, said, it will not be appropriate for all rights of way to have wheelchair access, for example, but in the overall improvement of the network of rights of way, attention must be paid to providing adequate access to rights of way that would be appropriate for disabled people who have mobility problems. The vast majority of people who suffer from other disabilities are able to use footpaths anyway, so issues such as signing are important, but wheelchair access clearly has to be taken into account, although we must recognise that it cannot be provided on all rights of way.
The noble Lord, Lord Greaves, the noble Baroness, Lady Mallalieu, and others asked about horse riders and bridleways. Local authorities have the power to create bridleways under the Highways Act 1980 and we agree that there is a case for more of them. The Bill will require authorities to take that into account in developing their rights of way strategy. Local rights of way will include bridleways. Local highways authorities are under a specific duty to consider the needs of the public. That clearly includes horse riders.
Lord Greaves: I understand that there are national targets for the length of new cycle tracks to be developed every year or every five years. Will the Government consider adopting similar targets for the creation of new bridleways?
Lord Whitty: That is rather difficult. I cannot commit myself to it. Cyclists clearly use particular tracks, but bridleways are not the only rights of way that horse riders benefit from in the countryside.
Baroness Miller of Chilthorne Domer: One of the anomalies of current legislation is that an access authority can upgrade a footpath to a cycle track under the Cycle Tracks Act 1984, but upgrading a footpath to a bridleway comes under the Wildlife and Countryside Act 1981. That is a more lengthy process that can take up to 10 years. Bridleways and horse riders lose out time after time because of the difficulty of that process.
6.45 p.m.
Lord Whitty: The rights of way improvement plans will need to address whether more bridleways are required and the appropriate powers will be used.

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Some aspects of that come under the Highways Act 1980, some come under this Act and some come under the Wildlife and Countryside Act 1981. The clauses require an overall approach by the local authority. On bridleways, if cyclists have a right of way they must defer to people on horses. All-purpose highways can be made available, giving equal rights to horse riders, cyclists and pedestrians, or a margin by the side of the highway can be created under the Highways Act 1980. There are many ways to make provision for horse riders, not necessarily involving local rights of way.
However, there is some conflict, as my noble friend Lord Hardy of Wath mentioned. Making all footpaths available to horse riders would be detrimental to the interests of walkers and the operation of the rights of way provisions. A balance has to be created.
Similar problems arise when we consider in detail Amendment No. 443A, tabled by the noble Baroness, Lady Miller of Chilthorne Domer. It relates to cycle racing and access to tracks by cyclists. One of its aims is to allow cycle racing on bridleways, subject to certain conditions. It would also allow racing between horses—or even, theoretically, between horses and cyclists—on any cycle track. As a quid pro quo, it would allow horse riders to use cycle tracks.
That is all very nice provided that everybody agrees, but there could be conflict. The amendment would make such permission conditional on a traffic regulation being made, which is another procedure to be gone through, but any racing would be subject to the conditions of the Road Traffic Act 1988.
There is a procedural question as to whether this Bill is the right vehicle to amend the law in respect of cycle racing, or, indeed, any sporting event. I think that the noble Baroness referred to the Government's separate procedure looking at changes in the road traffic regulation law, which has already covered cycle racing, including on bridleways. We are taking that review forward separately from the Bill. We understand that that is the preferred approach of organisations that represent horse riders, who have strong reservations about the issue being dealt with in the Bill.
A lot of cycle tracks would be unsuitable for races or trials of speed involving horses and could pose a danger to the rider and the horse. Cycle tracks are often not very wide and a race would obviously create greater stresses. The surface could be dangerous to the horse in some circumstances. I suspect that the amendment is aimed at a particular situation rather than more general circumstances. Looking at all the implications of the amendment, it would be better to deal with the issues raised in our review of the road traffic regulation laws rather than in the Bill, which could lead to substantial conflicts. Therefore, I hope that she will not pursue that amendment when we come to it.
I return to the amendment in the name of the noble Lord, Lord Northbourne, which is the first—
Lord Boardman: Can the noble Lord help me on that point? Did I gather from what he said that under the
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proposals in the Bill footways can be turned into bridleways without the complexities and delays that currently exist in relation to such conversions?
Lord Whitty: No, I did not say that, except in so far as the general provisions in the Bill will provide for redefinition. In relation to these clauses, the improvement plans for rights of way generally in each local authority area would identify areas where there was need for improvement. That would include the need for improvement of bridleways. However, the process by which that would normally be carried out would come under road traffic regulations rather than under the procedures in this Bill. With regard to both cycling and horse-riding, I understand that, because of the more general implications, the general view of people involved in those activities is that that is probably the better way to proceed.
However, that does not mean that the Bill and the improvement plans under these clauses should not include substantial provision in terms of planning for extending and making more accessible bridleways as well as footpaths. My other point was that clearly a number of footpaths would not be appropriate for such conversion. Therefore, the rights of walkers would also have to be protected in that regard, as I believe they are in the Bill.
We have now spent a full hour on this amendment and some interesting issues have been raised. However, I hope that the noble Lord, Lord Northbourne, will not pursue the amendment in this form. We agree about the importance of health but believe that that is reflected in the references to "open air recreation". Although we recognise the importance of circular walks, if they were specified in the Bill that would imply the downgrading of certain other desirable rights of way. I hope that the noble Lord will not pursue the amendment in that form and will therefore withdraw it.
Lord Northbourne: I am most grateful to Members of the Committee who have spoken from all sides of the Chamber. It appears that I have started something here. I did not expect to initiate such a full debate, but I am very glad that we had it because I believe that a number of important issues have arisen. The debate has highlighted the extent to which informed Members of the Committee are keen that the Bill should be seen as positive by making the rights of way network better rather than simply by niggling at points of detail. How that can be achieved at this late stage of the Bill, I do not know; probably to a large extent it cannot. However, it is sad that the Bill is not more creative so far as concerns the rights of way network.
The Minister said that he had sympathy for my concerns for public health. Both the Minister and the right reverend Prelate, who is no longer in his place, drew attention to the fact that the second half of my amendment was rather specific and possibly too limitative. I agree. Over the years I have developed a policy of trying to write amendments at Committee stage in such a way that Members can understand what they are about and then, if necessary, bringing

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them back in a simplified form later. Perhaps I may discuss the wording with the Minister before the next stage of the Bill. I suspect that I shall return on Report with wording which is similar to the first half of the amendment.
I do not believe that the words "open air recreation" necessarily have the same meaning as "health". Indeed, I consider that certain forms of open air recreation are thoroughly bad for the health. Some of the objectives could be covered by guidance. However, I believe that we should require strong assurances from the Minister about what such guidance would say. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Addington Lord Addington moved Amendment No. 416A:
Page 35, line 14, at end insert—
(""improved network" means a network where action has been taken to make it easier, safer and more enjoyable for people to use the network on foot or on horseback, by means that include (without prejudice to the exercise of other powers)—

(a) the creation of new public paths (footpaths and bridleways) to link with other rights of way in the network or to avoid walking or riding on roads;

(b) measures to make local rights of way more accessible to blind or partially-sighted people and others with mobility problems, including (but not limited to) the removal of stiles or their replacement by gates;

(c) measures to make it easier, safer and more enjoyable for people on foot or on horseback to use those carriageways which provide links between footpaths, bridleways and restricted byways, including (but not limited to) the exercise of traffic calming powers and powers to make traffic regulation orders;

(d) the creation of safe and convenient means for people on foot or on horseback to cross roads and railways;").

The noble Lord said: I have just realised that there was a specific point which I did not raise with the noble Lord and I apologise for that. It was in relation to making alterations to the plans in order to avoid being on public highways and having to deal with traffic. Does the noble Lord know whether under the Bill that would come under the creation of new paths or new activities? Although it is a small point, it is quite important.
Lord Hardy of Wath: I have a great deal of sympathy with the amendment of the noble Lord, Lord Addington. However, I have a reservation with regard to the replacement of stiles by gates. There may be cases when such a replacement would be appropriate. But I can think of a large number when it would not. Perhaps I may give two brief examples.
At the beginning of September my wife and I were walking down a hill and we saw a young man with a baby. It was a very happy looking baby. I said to my wife, "How old do you think that baby is?". She replied, "Well, it is certainly not more than nine months old". How long that baby will live, I do not know, because the happy baby and young man were on a quad bike. The bike was being steered by one hand and the baby held by the other. That is not an
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insurable prospect. I could not resist making a fairly tart observation to the man as he passed me. He slowed down until he had travelled another 200 yards and then accelerated mightily. I have seen him since in the same situation and have offered even firmer advice. That is the type of young man who would welcome a gate rather than a stile because it would enable him to continue to ride his quad bike and carry his baby.
That was not the only example. A few months ago I remember referring to the question of off-the-road motor vehicles. I said that there had been four deaths in my part of the country within a relatively short period of time. At the beginning of September there was a fifth. A girl of, I believe, 15 or 16 years of age was killed tragically on a footpath while riding a motorbike without wearing a safety helmet. We must recognise that some people are foolish and that some parents are utterly irresponsible. I believe that I have made that point before.
Last summer I saw 11 young people on an area of open ground not far from my home, all of them on motorbikes but not one wearing a helmet. I believe that the incidence of unhelmeted young motorcyclists has fallen since then because the press carried quite a lot of comment from people, including myself. However, the fact remains that stiles can save lives while gates may provide opportunity for suicide.
I give one other example. A few years ago on two very attractive footpaths near my home my local authority erected two splendid gates. One was smashed, presumably by a local car thief, who used the opportunity to dump the cars he had stolen in the space provided by the removed gate. The other handsome gate was removed in the dead of night, presumably by someone who was able to lift it off its hinges and carry it away by lorry. That left the footpath open for use by any four-wheeled vehicle.
I believe that we must be careful. I accept the need to promote opportunities for disabled people, but stiles can be and are designed to provide for that need. The replacement of a good, solidly-built stile by a gate can do a great deal of harm. I hope that my noble friend will look at that matter particularly carefully, even if he has sympathy with the other splendid proposals put forward by the noble Lord.
Baroness O'Cathain: I believe that the noble Lord has put the case for stiles versus gates very clearly from a particular point of view. However, it was not the fact that they were gates rather than stiles that caused those problems; it was man's stupidity. Therefore, I believe that one must also balance the fact that many disabled people find it difficult to get off country paths. If they have electric wheelchairs they can go through gates, whereas there is no possibility of them getting over stiles. I know—again, from anecdotal evidence—several people who are very close to me who have no prospect of getting someone who is so disabled that they cannot get out of a wheelchair into the country and along paths where there are stiles.
7 p.m.
Lord Whitty: Clearly, this is another matter where there is potential conflict between two desirable objectives. It rather underlines the case that those issues should be dealt with in guidance rather than on the face of the Bill.
We want to provide greater access for disabled people, as the noble Baroness and the noble Lord, Lord Addington, have said. But, on the other hand, there is a down-side to that in certain other situations. So we need to ensure that in drawing up their improvement plans the local authorities have regard to the needs of disabled people, which will include some of those issues. But they must have regard also to certain other aspects, including those referred to by my noble friend Lord Hardy, in the sense that we do not want to create rights of way which encourage vehicular traffic to act illegally and so on.
That will be quite a delicate job for the local authorities. It is not possible to put all those matters in detail on the face of the Bill. However, I assure the noble Lord, Lord Northbourne, who is no longer in his place, that the issue of circular walks, for example, will clearly be covered in guidance, as will the issues raised by the amendment tabled by the noble Lord, Lord Addington.
Baroness Miller of Chilthorne Domer: The Minister is placing the responsibility back on the access authorities to solve those conflicts and to create the improvements which the Government are seeking. Between now and the next stage of the Bill, is he able to write to us with a list of the areas in which the legislation prevents multiple use taking place and why that should be so?
Local authorities may wish to create the sort of multiple use of which we have heard where local residents want it. But it would be very useful for the next stage of the Bill to have a clear list of the areas in which legislation is preventing that happening.
Lord Whitty: I will do what I can. The noble Baroness asked for a "clear" list. Much of it does not instantly jump out of the page at you. There are complexities with the various pieces of legislation. However, we shall do what we can.
Lord Addington: I was trying to be helpful but this debate has merely demonstrated that the road to hell is definitely paved with good intentions.
This debate goes much further every time one thinks about it. In begging leave to withdraw the amendment, I must tell the Committee that I have every intention of bringing back amendments on Report which have been inspired by this debate. But meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 417:
Page 35, line 30, leave out subsection (7).
On Question, amendment agreed to.
Clause 56, as amended, agreed to.
Clause 57 [Rights of way improvement plans: supplemental]:
Baroness Byford Baroness Byford moved Amendment No. 417ZA:
Page 35, line 39, at end insert—
("( ) any conservation board for an area of outstanding natural beauty any part of which is within their area;").
The noble Baroness said: While the amendment of the noble Lord, Lord Northbourne, was very wide, this amendment is very short. The amendment provides for a highway authority to consult AONB conservation boards on its rights of way improvement plan, as it has a duty to do in relation to other bodies.
This is a necessary amendment to ensure full consultation in the light of the new provisions in this Bill regarding areas of outstanding natural beauty. I beg to move.
Baroness Miller of Chilthorne Domer: This will be a concern that I shall raise throughout the debate on AONBs. I am certainly in favour of the consultation but I am nervous that we shall create a two-tier AONB system because the AONBs which do not opt for conservation boards may become left out of the process. I merely put that down as a marker at this stage.
Lord McIntosh of Haringey: I do not think that they need be. I am sure that other ways can be found. My answer to the amendment is to say that Clause 57(1)(f) states that the highway authority shall consult,
"such persons as the Secretary of State … may by regulations prescribe",
and subsection (6) prescribes the way in which the regulations are to be made.
We would certainly expect AONB conservation boards to be consulted on the plans, using the powers provided by Clause 57. I am willing to give an undertaking that we shall include AONB conservation boards in the regulations prepared by the Secretary of State, subject, of course, to your Lordships and the other place agreeing that they should be established.
Baroness Byford: I am extremely grateful for that response. I accept that there are many groups which look after those special areas which are not full conservation boards. It may be that my amendment was incorrect in that respect. I am happy for the Minister to take it away and think about it. I am extremely grateful for the indication that such consultation will be included in the regulations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Byford Baroness Byford moved Amendment No. 417A:
Page 35, line 43, at end insert—
("( ) the Environment Agency;
( ) in England, English Nature;").
The noble Baroness said: Clause 57(1) sets out the bodies which local authorities are required to consult in preparing rights of way improvement plans. There is no reference to consultation with the Environment Agency. The agency has duties in relation to recreation and also in relation to fisheries, navigation, flood and coastal defence and pollution control. Those are all relevant matters in relation to the rights of way network.
Accordingly, the Environment Agency should be consulted on improvement plans. This amendment would provide for that. There is a reference in Clause 57(1)(e) to consulting the Countryside Agency in England and the Countryside Council for Wales. However, there is no reference to the need for local authorities in England to consult English Nature which fulfils the same role in relation to wildlife as the Countryside Council for Wales in Wales. The amendment will correct that omission.
It is relevant to note that the draft guidance produced on the rights of way improvement plans by the Countryside Agency failed to make any reference to the need for the Countryside Agency or English Nature to be consulted. That suggests that the Countryside Agency has failed to appreciate the importance of involving both bodies in consultation. If so, those are serious omissions, particularly in relation to English Nature in view of the provision to enable the diverting of rights of way for the protection of SSSIs under new Section 119D of the 1980 Act introduced by Schedule 6, and the provisions relating to the making of traffic regulation orders for the purposes of conserving natural beauty in Clause 62. I am looking for reassurance from the Government. I beg to move.
Lord McIntosh of Haringey: I realise that I did not make the case fully in response to the previous amendment as to what should be on the face of the Bill and what is not on the face of the Bill. I made the point that those bodies which are not on the face of the Bill can be consulted and I gave an undertaking in relation to AONB conservation boards.
The Bill provides a power for the Secretary of State or the National Assembly for Wales to make regulations prescribing bodies to be consulted. The list of consultees on the face of the Bill is mainly concerned with those who have or are likely to have some rights of way functions themselves. That is why they are on the face of the Bill rather than in the catch-all. That is why the Countryside Agency and the Countryside Council for Wales are included.
The regulation-making power is for all other bodies which, although they may have no direct rights of way functions, may, nevertheless, have an interest in how those functions are discharged. That includes such bodies as English Nature and the Environment Agency, which are the subject of the amendment. They are better left to the regulations. Otherwise, we shall be compiling a long list of additions to the Bill, which would get worse as we went through Report and Third Reading.
Baroness Carnegy of Lour: Is the noble Lord giving an undertaking that the Government will include the Environment Agency and English Nature in the regulations, as he gave an undertaking on the last amendment? He has not said so.
Lord McIntosh of Haringey: No, I did not say that. But I think I can give that undertaking, off my own bat.
Baroness ByfordI note that the noble Baroness, Lady Young of Old Scone, is smiling. I was not looking for a long list. It seemed to me to be a slight omission that the two main agencies are not on the list. However, if the Minister is committing the Government to putting them on it, I shall be happy to withdraw the amendment.
I understand why the Minister wishes to include many of the other bodies in regulations. However, it seems strange that the two main bodies, which have a great input in this matter, are not on the face of the Bill.
Baroness Young of Old Scone: Perhaps I may make one point of clarification. I must declare my interest as chairman of English Nature. I confess that my smile was a wry smile rather than a smile of welcome. English Nature has the capacity to be consulted as of right if a right of way improvement plan will impact on an SSSI. That is our primary consideration. Other provisions of the Bill make that a requirement. Being named in the regulations or guidance is to some extent a mixed blessing. It means that we shall be consulted on all rights of way improvement plans. We are slightly worried about the weight of paper which might head in our direction under that provision. However, we shall relax under that requirement if that is one to which the Minister wishes to make a commitment.
Baroness Carnegy of Lour: The noble Baroness has helped the Committee and the Minister. However, perhaps I may suggest that she will have to watch her Addison's rules.
Lord McIntosh of Haringey: I am sure that those who have been asking for this commitment will read it in the light of the comments made by the noble Baroness, Lady Young.
Baroness Byford: I shall not delay the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Byford Baroness Byford moved Amendment No. 417B:
Page 36, line 22, after ("area,") insert—
("( ) any conservation board for an area of outstanding natural beauty any part of which is within their area,").
The noble Baroness said: Amendment No. 417B is linked to my earlier amendment. It allows a local highway authority to prepare its rights of way implementation plans jointly with any conservation board of the areas of outstanding national beauty.

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Perhaps I should not include "conservation board" but say that I am referring to areas of outstanding natural beauty. I beg to move.
Lord McIntosh of Haringey: These amendments would allow a local highway authority to make arrangements with any relevant conservation board to discharge jointly their functions under Clauses 56 and 57; in other words, to prepare a joint rights of way improvement plan. As we shall see when we come to debate the amendments providing for the creation of AONB conservation boards, it will become clear that we intend that an individual AONB's establishment order will transfer to it particular relevant local authority functions or provide for functions to be discharged jointly.
Perhaps I may suggest that the amendments are not necessary. This is rather awkward, as we have not yet debated AONBs. We do not yet know what the establishment orders for individual AONBs will be. We shall have plenty of opportunity to debate this issue in the right place.
Baroness Byford: I slightly smile at the Minister's last comment. I accept that this is awkward. However, the whole section regarding AONBs was added to the Bill after it had passed through the other place. I believe the Committee will realise why this is difficult. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 417C not moved.]
7.15 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 418:
Page 36, line 33, after ("section") insert—
(""local highway authority" has the same meaning as in the 1980 Act;").
On Question, amendment agreed to.
Clause 57, as amended, agreed to.
[Amendment No. 419 not moved.]
Clause 58 agreed to.
Clause 59 [Enforcement of duty to prevent obstruction]:
The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling Amendment No. 420, I must inform the Committee that if this amendment were to be agreed, I could not call Amendments Nos. 421 to 428.
[Amendment No. 420 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 421:
Page 37, leave out lines 26 to 31 and insert—
("(a) it is or forms part of—

(i) a building (whether temporary or permanent) or works for the construction of a building, or

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(ii) any other structure (including a tent, caravan, vehicle or other temporary or movable structure) which is designed, adapted or used for human habitation,").

The noble Lord said: In moving Amendment No. 421, I shall speak also to Amendments Nos. 422 to 430, 432, 434 and 438 to 440.
These amendments all relate to the provisions in Clause 59 for dealing with obstructions. Certain obstructions are excluded from Clause 59 because we believe that local highway authorities should retain discretion as to how and when to take action to get them removed. Among the exclusions are buildings or any other structures, including vehicles, which it appears may be used as a dwelling. Amendment No. 421 clarifies the definition of buildings to include parts of buildings and those which are under construction. The amendments also remove a potential loophole. For example, it is arguable that an empty vehicle which is not designed to be used as a dwelling but which has been placed across a right of way to prevent the public from using the way at present would be exempt from Clause 59. That is because it is conceivable that someone could live in the vehicle.
Amendment No. 421, together with Amendment No. 434, would prevent such obstructions from being excluded from the new provisions, provided they are not being lived in at the time when a complaint is first made to the highway authority.
The remaining government amendments in this group reorder parts of Clause 59 adding two new sections: 130C and 130D. The process in Clause 59 is that a member of the public may serve a notice on a local highway authority when a right of way is obstructed. If the obstruction has not been removed after a certain period of time, the complainant may seek an order from the magistrates' court requiring the authority to take action to ensure that the obstruction is removed. The highway authority is required to inform anyone who it thinks may be responsible for an obstruction that a complaint has been made. However, as the Bill is currently drafted, those persons, as third parties, do not have a right to be heard if the case goes to court.
Amendments Nos. 422 to 430, 432 and 438 to 440 would do three things. They would give a person who is responsible for the obstruction and the owner of the obstruction, if that is someone else, a right to give evidence in the court on those matters on which it must be satisfied before it can make an order. These are set out in the Bill at present. The aim is to ensure that the court is provided with as much relevant information as possible when deciding whether to make an order. Secondly, the amendments would give the person responsible for the obstruction a right to appeal to the Crown Court against the decision of the magistrates' court. The complainant and the highway authority already have such a right under the Bill. Thirdly, the amendments introduce a number of procedural changes: for example, to ensure that persons with a right to be heard are informed of the court hearing and

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are allowed time for any of the parties to appeal to the Crown Court before an order made by the magistrates' court can take effect. I beg to move.
Baroness Byford: I rise to support Amendment No. 421, which makes good sense. I thank the Minister for tabling it. Perhaps I might ask one question of clarification. Does the amendment include any request, regardless of how small or whether it is reasonable? Having looked at the Bill I am not sure where the amendment kicks in. I would be grateful for clarification.
Lord McIntosh of Haringey: Amendment No. 422 does not refer to a request. Amendment No. 422 states:
"A person serving a notice … must include in the notice the name and address, if known to him, of any person … responsible for the obstruction".
Baroness Byford: I apologise to the Committee. I was not clear whether anybody could raise, at any stage, any objection to anything that was obstructing the highway, whether the objection was reasonable or not. If I have that in the wrong place, I apologise to the Committee.
Lord McIntosh of Haringey: Members of the public, which is anybody, can object to obstructions across rights of way.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 422 to 430:
Page 37, line 35, at end insert—
("(4A) A person serving a notice under subsection (1) above must include in the notice the name and address, if known to him, of any person who it appears to him may be for the time being responsible for the obstruction.").
Page 37, line 37, leave out ("by any person").
Page 37, leave out lines 39 to 41.
Page 37, line 42, at beginning insert ("on every person whose name and address is, pursuant to subsection (4A) above, included in the notice and,").
Page 37, line 42, after ("every") insert ("other").
Page 37, line 46, leave out ("it") and insert ("the obstruction"). Page 37, line 47, at end insert (", and
(c) on the person who served the notice under subsection (1) above, a notice containing the name and address of each person on whom notice is served under paragraph (b) above and stating what, if any, action the authority propose to take in relation to the obstruction.").
Page 38, line 1, leave out from ("of") to ("may") in line 3 and insert ("this section the persons for the time being responsible for an obstruction include the owner and any other person who for the time being—

(a) has possession or control of it, or

(b)")

Page 38, leave out lines 22 to 31 and insert ("apply to a magistrates' court in accordance with section 130C below for an order under this section.").
On Question, amendments agreed to.
[Amendment No. 431 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 432:
Page 38, line 35, at end insert—
("( ) An order under this section shall not take effect—

(a) until the end of the period of twenty-one days from the day on which the order is made; or

(b) if an appeal is brought in respect of the order within that period (whether by way of appeal to the Crown Court or by way of case stated for the opinion of the High Court), until the final determination or withdrawal of the appeal.").

On Question, amendment agreed to.
Lord Luke Lord Luke moved Amendment No. 433:
Page 38, line 36, leave out ("subsection (5)") and insert ("subsections (5) and (5A)").
The noble Lord said: In moving Amendment No. 433, I shall speak also to Amendment No. 437. These are consequential amendments.
Clause 59 provides important new powers to tackle obstructions on rights of way. However, there is a risk that the clause could give rise to contention and undermine attempts to secure a complete and accurate definitive map. That is because the clause provides that the new powers can be exercised in relation to "any" public footpath or bridleway, whether or not such ways are shown on the definitive map. Thus someone could seek to secure the removal of an obstruction over a path whose status was disputed without also needing to clarify the path's status by seeking a definitive map modification order. Clause 59 would seem to provide a way of asserting rights by the back door.
If an authority acted on an application in relation to a way not shown on the definitive map, it would be accepting that the path sustained public rights which may well be disputed by the owner or other local people. If the authority did not subsequently make a definitive map modification order to add the path to the definitive map, contention over the status of the path could continue indefinitely.
An approach consistent with better regulation would be to clarify the status of paths before taking action to remove obstructions from them. The amendments would tackle the problem by giving the owner or occupier, in addition to the highways authority, a right to appear in the magistrates' court to dispute the grant of an order requiring an obstruction to be removed where the owner or occupier had evidence that called into serious question whether the route obstructed was indeed a public right of way. I beg to move.
Lord Bridges: I should like to raise a related point on this clause. Blockages to rights of way are not only caused by obstruction. For example, they may be caused by the removal of a plank across a dyke which makes it impossible to use that right of way. Some

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further addition is therefore needed to the clause in order to cover that difficulty. Perhaps the Minister will be able to give us an assurance on that point.
Lord McIntosh of Haringey: Amendment No. 437 is the substantive amendment in this group. It would widen the effect of the government amendments to which I have just spoken which relate to the right of third parties to appear before a court. A court may not make an order if it is satisfied by the local highways authority that, among other things, there is no serious dispute as to the existence of a highway of the kind to which Clause 59 applies. The government amendments provide that a person who is responsible for an obstruction would also have a right to be heard on the matter by the court and prevent an order from being made if he can satisfy the court on the existence of a highway.
The term "person responsible", as amended by the government amendments, would cover the owner of the obstruction as well as any other person who has possession or control of it or who might be required to remove it. For practical purposes that is often likely to cover a landowner. For example, the provisions under Section 54 of the Highways Act 1980 relating to overhanging vegetation allow for a notice to be served on the owner of the vegetation concerned or the occupier of the land where it is grown.
An obstruction of the highway has been defined as,
"something which permanently or temporarily removes the whole or part of a highway from public use altogether",
as per Lord Evershed in Trevett v Lee 1955. A few examples of obstructions include a bull in a field, the construction of a house over a footpath, the display of goods by shopkeepers, meetings, processions and picketing, parked cars and overgrown vegetation. I do not want to make the law on my feet but it seems to me that,
"permanently or temporarily removes the whole or part of a highway from public use",
would include a plank over a stream or a dyke. If I am wrong about that I shall write to the noble Lord and put a copy in the Library so that I am not accused of making law on my feet.
The principal reason why the Government introduced amendments giving such people a right to be heard by the court is that the obstruction could be their private property. For example, if the obstruction was a lawful one but that had not been drawn to the attention of the court, then a person could have his property removed without good reason.
The Government do not believe that it is necessary or desirable to widen the provisions further in this respect. At the end of the day, an order made by a magistrates' court could not have the effect of creating a highway where one does not exist. It is not at all clear why landowners should have a specific right to be heard in this instance. There never has been any suggestion that landowners should have a right to appear in every set of proceedings in which there is a question of whether or not a highway exists—for example, under Section 137 of the 1980 Act.
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We believe that Clause 59, with the addition of the government amendments, is sufficiently well balanced to provide a workable means of encouraging local highway authorities to take action to prevent, as far as possible, the rights of way in their areas from being obstructed.
I am sorry that there are such extensive amendments to Clause 59. But we supplied to the Opposition Front Benches a copy of the Bill as amended by the government amendments, which I hope makes it clear what they mean. On that basis, I hope that the noble Lord, Lord Luke, will not press his amendment.
Lord Luke: I am grateful to the Minister for that response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 434:
Page 38, line 39, at end insert ("or, in a case falling within subsection (4)(a)(ii) of that section, is one to which that section would apply but for the obstruction having become used for human habitation since service of the notice relating to it under subsection (1) of that section,").
On Question, amendment agreed to.
Baroness Scott of Needham Market Baroness Scott of Needham Market moved Amendment No. 435:
Page 38, line 47, at end insert ("(an entry in the definitive map and statement of a way specified in subsection (2)(b) of that section being conclusive as to its status for the purposes of this section)").
The noble Baroness said: Amendment No. 435 relates to the question of the courts making an order to clear an obstruction under Clause 59 of this Bill.
This amendment is in part designed to test the Government's thinking on an issue which over the past few days the Committee has highlighted in a number of different respects; that is, the extent to which the definitive map can truly be regarded as "definitive" and its conclusiveness in relation to landowners and members of the public. The amendment also seeks to ensure that no one can use a challenge to the definitive map as a justification for obstruction.
I can understand how the situation may arise when someone feels justified in obstructing a route which is not on the definitive map and that a court might subsequently use the "seriously disputed" provision as a reason to defer taking action on the obstruction. But the position should be quite different where the obstructed route is on the definitive map. It will have arrived there after a lengthy process, which often costs a good deal of public and private money. For someone to obstruct that route and justify it by saying that they dispute the status of the route is quite wrong.
It has become evident over the past few days that we should be seeking to find ways to strengthen the integrity of the definitive map; it is at the heart of a number of issues including, for example, the Grimsell Lane case. When we dealt with Part I of the Bill, Members of the Committee on all sides of the Chamber made great play of the fact that there should

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be clarity in the signing and mapping of new access areas. But that concern should apply to public rights of way.
The defence of a right of way being "seriously disputed" is to be resisted for the reason I have already given but also because it is a curiously subjective term to be found on the face of a Bill. How is "serious" to be defined and by whom? I hope that between now and Report stage the Government will give thought to ways in which the definitive map can be strengthened and preserved. I beg to move.
7.30 p.m.
Lord McIntosh of Haringey: I fully support the motives behind the amendment. It relates to the provisions in Clause 59 that the courts should not make an order if there is a serious dispute as to whether a way is a highway of the kind to which Clause 59 applies. However, I hope that I can persuade the noble Baroness, Lady Scott, that the amendment is unnecessary.
Where a highway is shown in a definitive map as a restricted byway or a byway open to all traffic, that is conclusive evidence that the way in question is a highway. It is a straightforward question of fact whether a way is shown as a restricted byway or as a byway open to all traffic. In such circumstances, there could be little prospect of a serious dispute—serious as opposed to frivolous, trivial or vexatious—over whether a way fell within subsection (2)(b) and so it seems that Amendment No. 435 is unnecessary.
Baroness Scott of Needham Market: I thank the noble Lord for that reply. I am a little disappointed that at this stage the Government are not prepared to say more about the definitive map and how it might be strengthened. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 436 and 437 not moved.]
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendments Nos. 438 to 440:
Page 39, leave out lines 9 to 16.
Page 39, line 16, at end insert—
("(6A) A highway authority against whom an order is made under this section shall, as soon as practicable after the making of the order, cause notice of the order and of the right to appeal against it to be displayed in such manner and at such places on the highway concerned as may be prescribed by regulations made by the Secretary of State, and the notice shall be in such form and contain such information as may be so prescribed.").
Page 39, line 18, at end insert—
("Section 130B: procedure.
130C.—(1) A person proposing to make an application under section 130B above shall before making the application serve notice of his intention to do so on the highway authority concerned.
(2) A notice under subsection (1) above shall be in such form and contain such information as may be prescribed by regulations made by the Secretary of State.
(3) The notice may not be served before the end of two months beginning with the date of service on the highway authority of the notice under section 130A(1) above ("the request notice").
(4) An application in respect of which notice has been served under subsection (1) above may be made at any time—

(a) after the end of five days beginning with the date of service of that notice, and

(b) before the end of six months beginning with the date of service on the highway authority of the request notice.

(5) On making the application the applicant must give notice to the court of the names and addresses of which notice was given to the applicant under section 130A(5)(c) above.
(6) On the hearing of the application any person who is, within the meaning of section 130A above, a person for the time being responsible for the obstruction to which the application relates has a right to be heard as respects the matters mentioned in section 130B(4) above.
(7) Notice of the hearing, of the right to be heard under subsection (6) above and of the right to appeal against a decision on the application shall be given by the court to each person whose name and address is notified to the court under subsection (5) above.
Section 130B: costs.
130D. Where an application under section 130B above is dismissed by virtue of paragraph (a), (b) or (c) of subsection (5) of that section, the court, in determining whether and if so how to exercise its power under section 64(1) of the Magistrates' Courts Act 1980 (costs), shall have particular regard to any failure by the highway authority to give the applicant appropriate notice of, and information about, the grounds relied on by the authority under that paragraph."
(2) In section 317 of the 1980 Act (appeals to the Crown Court from decisions of magistrates' courts) after subsection (2) there is inserted—
"(3) Any person who, in relation to the decision of a magistrates' court on an application under section 130B above, does not fall within subsection (1) above but—

(a) is, within the meaning of section 130A above, a person for the time being responsible for the obstruction to which the application related, or

(b) when the application was heard, was such a person and was, or claimed to be, heard on the application,

may appeal to the Crown Court against the decision on any ground relating to the matters mentioned in section 130B(4) above."").
On Question, amendments agreed to.
Clause 59, as amended, agreed to.
Clause 60 [Power to order offender to remove obstruction]:
[Amendment No. 441 not moved.]
Clause 60 agreed to.
Clause 61 agreed to.
[Amendment No. 441A not moved.]
Baroness Farrington of Ribbleton: I beg to move that the House do now resume. I suggest that the Committee stage should begin again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Science and Innovation
7.32 p.m.
Lord Haskel Lord Haskel rose to ask Her Majesty's Government what will be the effect on the economy, on knowledge, on the nation's health and on the environment of the Government's science and innovation policy paper Excellence and Opportunity.
The noble Lord said: My Lords, first, I should like to thank all noble Lords who are speaking this evening. Some may be seeking respite from debating the countryside. But I am sure all are speaking because they care about science and innovation. They care about the impact that science and innovation will have on our lives, on our economy and on the kind of world in which we live.
It is not my intention to make a diagnosis of what science and technology can do for us. The Government have done that in their White Paper. Few would disagree with the Government's vision of how science will change our lives. Few will disagree with the Government's view of the importance of science and innovation. We all want industry to prosper through innovation. We all want to improve the quality of people's lives through science.
The White Paper lays down ambitious plans to achieve those aims and objectives but will those plans achieve tangible results? How effective will they be? How will business view these proposals? That is what I would like to explore, and where better to begin than at the DTI itself.
In this White Paper, the DTI sees itself as a proactive partner stimulating economic progress through science and innovation. Fine. But many in business and industry see the DTI as the agent for intervention and regulation standing in the way of progress. Facilitating science is perceived as helpful; intervening with regulation is seen as a barrier. Perceptions are important. Should a single organisation try to achieve both of those objectives?
In his introduction to the White Paper, the Secretary of State says he will be looking at the structure of the DTI to see how it can be improved. I hope that he will somehow divide those responsibilities so that the one is not perceived as cancelling out the other.
The White Paper sees the DTI as being in partnership with business to exploit and encourage scientific innovation in order that British industry should grow and become more productive. Bravo to that. But a successful partnership depends on understanding each other's cultures and problems. As my noble friend Lord Paul knows, to businessmen, innovation means risk. More innovation fails than succeeds. Despite describing innovation as complex and needing good management, in the White Paper risk and failure are referred to only obliquely.
The White Paper assumes that innovation, once identified, will happen. It does not. Someone has to make it happen. One of the most difficult things in management is to persuade people to embrace technological change. That is especially difficult when
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those at the top are convinced that there is a huge investment in the existing technology and profits are flowing from it. Some hold the view that all you need is a research department and innovation flows from that. Would it were that simple. In fact, between 1994 and 1998, 35 per cent of our productivity growth actually came from good new firms entering the economy and replacing poor old ones which were leaving it.
The White Paper sees the universities as a major source of these new businesses. I agree. This is why I welcome the various challenge schemes and partnership schemes outlined in the White Paper to encourage those new entrants into the economy. But existing businesses need stimulating, too.
It is here that I think the Government's Foresight proposals are very helpful. Quite rightly, the White Paper points out that too many of our companies still lack awareness of the need for innovation or the ability to do it. Perhaps that is why we invest less in research and development than our competitors. But by giving each sector of industry a vision of its future, Foresight provides a framework within which better to understand the need for change. It provides a framework and a vision within which people in the company can see that the effort and disruption is worth while. It also reduces risk, because Foresight provides a framework in which to get risky decisions right. Indeed, a sign that this thinking is becoming accepted is that it is acquiring its own jargon; "technology roadmapping".
Next month, the Foresight panels will start reporting. I hope that the Minister will use those reports as an opportunity to persuade our less adventurous companies that innovation is less risky if done within the framework of a Foresight report. If he also reminds companies of the assistance given by the best practice sector of the Small Businesses Service, he should encourage more firms to be innovative and to reinvent and transform themselves for the future. And we can do it. More and more British industry is transforming and reinventing itself. We can see that from the growth of science and knowledge business quoted on the stock market. Despite the recent fall in the value of technology stocks, knowledge-intensive businesses are accounting for a growing percentage of the London Stock Exchange. The proposals in this paper should speed this up.
Five years ago, the Stock Exchange valued companies on their profits, assets and prospects for the future. In this new economy, companies are valued on their knowledge and expertise. The knowledge of scientists and engineers is central to a company's valuation. But these commercial pressures mean that more thought needs to be given to the professional standing and integrity of these scientists and engineers.
Nowadays, a scientific result can quickly make an enormous impact on the value of a company. Understandably, some people ask whether the opposite is true: do financial necessities have an impact on scientific results? The White Paper describes an excellent code of practice for the scientific advisory committees and other strategic bodies. Could not

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those high standards be applied to scientists themselves? They would certainly enhance the status of scientists, engineers and technologists.
An important test of people's attitudes towards the integrity of scientists will take place on 26th October. The press believes that on that day the Government will present to Parliament the results of the BSE inquiry chaired by the noble and learned Lord, Lord Phillips. I understand that that report will name politicians, officials and scientists who should be criticised. I hope that above the voices of the politicians who defend themselves will be heard those of the scientists whose advice they did or did not take. That will be an important opportunity to speak up not only for the status and integrity of scientists but also for the political independence of scientific data. If the public lose faith in the impartiality of their scientists they are likely to lose faith in science and innovation, which will make the Government's task more difficult than it is already.
I have said little about research at universities because it is a world about which other speakers, such as my noble friend Lady Warwick, the noble Baroness, Lady Sharp, and the noble Lord, Lord Dahrendorf, know far more than I. However, I am aware that business and industry welcome the proposal in the White Paper to give greater balance to research assessment exercises now that they will include work done for industry and research into basic technology. That is the nub of the relationship between business and the universities. That equal credit given to applied work at the universities must encourage more collaboration between businesses and universities and lead to greater investment and innovation.
I had the privilege to work on the report of your Lordships' Select Committee entitled Science and Society. I am delighted that many of its proposals are supported in chapter 4 of the White Paper. I believe that the proposals of the Government understand, and do not underestimate, the public. The public are generally aware of the existence of risk and uncertainty. That may make them more critical of science and less deferential to scientists but that should not be mistaken for being anti-science. For that reason, the White Paper is right to insist that science takes the public into its confidence and shares its doubts, uncertainties, knowledge and information—for we need to convince people that the business of science is to serve society.
7.43 p.m.
Lord Paul: My Lords, I thank my noble friend Lord Haskel for initiating this debate. I add my congratulations to the Government for the outstanding science budget and my right honourable friend Stephen Byers on the comprehensive nature of the science and innovation policy. I declare an interest as chairman of Caparo Group, a manufacturing company. I am also Chancellor of the University of Wolverhampton and Thames Valley University.
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The commitment to invest long term in the science base of this country demonstrates confidence in our universities and industries and their ability to work in partnership to achieve economic growth and prosperity. There is, however, one area of research and innovation which may not have been given sufficient priority: support for SMEs, particularly in the traditional manufacturing sector. As an example, I refer to the shock waves resulting from the Rover crisis and the excellent work of the Rover task force. This work revealed the vulnerability of some of the supply chain manufacturers that use traditional manufacturing skills. Often that sector is characterised by lack of investment and relatively low technical skills.
However, it is vital to innovate and diversify, and that requires a special type of science research funding. It is not about national excellence but regional support from local universities. There have been effective schemes to encourage local support for SMEs, and I hope that the new investment in science does not overlook this vital part of our economy. I also have in mind the need to ensure that access to the global knowledge economy is not restricted to our largest blue chip companies through their partnership with top-flight research universities. The future economy of the country depends critically on finding ways to develop small and innovative high-tech organisations that can respond rapidly to new opportunities and markets. Often these micro-organisations require considerable local care and support which is best achieved by effective partnership with local universities.
7.46 p.m.
Baroness Warwick of Undercliffe: My Lords, I too thank my noble friend Lord Haskel for introducing this timely debate. In my brief comments I should like to concentrate on those aspects of the White Paper which affect universities. I declare an interest as chief executive of CVCP, the representative body of universities in the UK. Universities have universally welcomed the science and innovation White Paper which rightly acknowledges that the excellence of UK research has been sustained, but at the cost of running down buildings and equipment and lack of reward for staff because of under-funding in previous years. That could not continue. It is good to see that progress has been made towards addressing that challenge, and the White Paper shows clearly that the Government have listened.
Universities enthusiastically embrace the challenge to reach out for and stimulate innovation in the local and national economy, as my noble friend Lord Paul indicated. That is a third mission alongside teaching and research. Therefore, we welcome the additional support announced in the White Paper for knowledge transfer. The list of schemes for this purpose, all of which are welcome, is now rather long. I hope that the new HE innovation fund also announced in the White Paper will provide an opportunity for the rationalisation of schemes for knowledge transfer. Certainly, I applaud the intention that it should become a permanent funding stream. I believe that universities

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will contribute more effectively if allowed the freedom to develop their own creative approaches rather than respond to narrow or over-prescriptive criteria.
We can now begin to debunk the myth that universities are good at research but poor at exploiting it for the public good. The return achieved from research commercialisation in UK universities now matches the US, and I believe that the survey of university/industry interaction announced in the White Paper will confirm that. Nevertheless, we can all benefit from sharing good practice. That is why CVCP is happy to collaborate with a variety of public bodies. We do it on university consultancy, the management of intellectual property, research careers and improving the participation of women in science.
However, a major challenge now is industry pull. As my noble friend Lord Haskel said, companies need to value better knowledge and expertise. The latest figures show that UK industry is raising the level of its investment in R&D, but there is still some way to go to meet the levels achieved by our major competitor countries. The White Paper will help, but this area will need sustained attention.
My one concern about the White Paper is that an emphasis on science and technology can crowd out other areas. At times the White Paper appears to regard knowledge and innovation and their contribution to the economy and the quality of life as solely to do with science and technology. But many of the innovative ideas in the knowledge economy will come from the social sciences, business and management and the arts and humanities. I know the Minister recognises that.
My main concern, however, is with the wider funding of universities. There remain major needs in the teaching infrastructure, especially in science, and in resources to enable universities to recruit and retain high-quality staff. The White Paper includes welcome measures here, but I fear much more will be needed. It is good to be able to look forward to refurbished laboratories but we also need to be able to recruit and retain staff to teach.
Finally, the Minister for Science and Innovation deserves our congratulations on a stimulating White Paper. It certainly gives universities support they greatly need and also sets them challenging targets. Working together, I am confident that we can meet those targets for the good of the country.
7.51 p.m.
Lord Dahrendorf: My Lords, this is a welcome debate on a welcome White Paper. I agree with the points made in the White Paper and made by the noble Lord, Lord Haskel, about translating excellence into innovation and also, incidentally, with the thesis that the United Kingdom has shown a curious weakness in translating excellent research into business practice or generally into management.
However, I want to address myself to the issue of excellence and make two points. First, we do not really know what conditions and circumstances produce excellence. But we do know what conditions and
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circumstances impede it. Bureaucratisation impedes excellence. In my view, the research assessment exercise has in no way contributed to the excellence of research and science in this country. Over-regulation impedes excellence. It is difficult to quote from the White Paper as there is confusing numbering. However, I understand paragraph 26 of Chapter 1 to state that,
"Science must be our servant and not our master",
and the role of government should be as a regulator. But it is as important that government and everyone involved remain guardians of the freedom of research. The outrageous may be more creative than the totally normal.
Over-emphasis on access can impede excellence. I am reluctant to say this. I have fought throughout my adult life for education as a civil right, but excellence is something different. Paragraphs 35 to 38 of Chapter 2 on improving opportunities for women are fine. I agree with them. But they are not related to the issue of excellence.
Over-emphasis on application can impede excellence. There are many fine statements in the White Paper about curiosity-driven basic research. They are funding promises of co-operation between government and some of the great foundations. Perhaps there is a little too much of the other theme of making sure, as is stated in paragraph 1 of Chapter 1,
"that we have the facility to quickly transform the fruits of scientific research and invention into products and services that people need to improve their well-being and quality of life".
Leaving the split infinitive on one side as one kind of excellence, I believe that it was in fact a climate of freedom, of purposeless inquiry, coupled with the commitment of bright inquirers and a degree of eccentricity which accounted for the great achievements of British science. Are we living in a time in which only the great American research universities provide this kind of freedom, a kind of freedom which takes account of the desirability and the needs of application, but which initially is geared just to advancing our knowledge?
My second point is brief and simple. It echoes the statement made by the noble Baroness, Lady Warwick of Undercliffe. It is a mistake, intellectually as well as in policy terms, to single out science in the narrow sense and forget the wider context of human inquiry, humanities and the social sciences. Creativity knows no boundaries. Few great scientists have not crossed into history or philosophy or the social sciences. Our understanding of how the world works requires a broader view than the White Paper conveys. Indeed, one begins to wonder whether in the end the DTI is the best place in government for making sure that we keep an outstanding and comprehensive research base.
7.55 p.m.
Lord Hunt of Chesterton: My Lords, I am grateful to Lord Haskel for introducing the debate on the recent White Paper on Excellence and Opportunity.

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I should like to comment on this important announcement of increased investment and new policy initiatives for science, engineering and technology, and make a few suggestions about their implementation. These are based on my experiences. I am here declaring my interests as an academic scientist and engineer and founding director of a small science-based company. I was chief executive of the Met Office, a senior position in the Civil Service, and I have visited government agencies and universities in the USA, Japan and Europe.
I would say that the same six issues affect all scientists from the Minister, who is a scientist, to the researcher on the bench: excellence, education, ethics, explanation, exploitation and existence. For many individual scientists existence is the most critical as they eke out their modest salaries. They will welcome the recent steps to raise salaries, but more must be done, and not just for high flyers. Better salaries and recognition schemes for technicians are also essential.
Excellence in research and education, which requires financial and human resources, will be furthered by the White Paper policies. One has seen comments in Nature and elsewhere on that.
As the president of the Royal Society has emphasised, the ethical aspects of science are now at the forefront of science policy and are becoming more difficult. Perhaps governments should recognise that before long an appropriately empowered science minister will have a position as important and politically fraught as that of the Home Secretary. The White Paper commends our open procedures and encourages further steps to ensure that these ethical and practical issues are properly considered and explained so as to give improved public confidence. For example, Le Monde recently commended the role of the Human Fertilisation and Embryology Authority.
The need for scientists as well as science ministers to explain their work openly, often and interestingly was emphasised by the committee of the noble Lord, Lord Jenkins, by Bob Worcester's MORI polling and of course by many journalists. A press survey when I was at the Met Office commended its practice of open access by journalists to the responsible scientists. Hopefully the study of communication mentioned on page 55 of the report could lead to improved guidelines for public and private institutions.
The Internet, emerging from basic physics, has shown that the exploitation of research for the benefit of society and for commercial ends is not only very satisfying and financially rewarding to individuals and institutions; but also, as the history of science relates, exploitation often leads to new questions and new scientific ideas. When I was at Cambridge I had a telephone call about a power station behaving like Moby Dick with jets of water 40 feet high. In helping to solve the problem new fundamentals came about, like bubbles in vortices. I can explain what that means in the bar afterwards if anyone wants to know.
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As the Government recognise, they have three more direct roles, which might be described as facilitation, changing institutional arrangements and innovation. In each of these areas the White Paper describes new policies, new funding streams and new opportunities. As to the first, the White Paper argues—I am sorry that only one noble Lord is present on the Conservative Benches—as did Mr Heseltine in his provocative 1987 book on government and indeed as Harold Wilson did in 1964, that research and development and purchasing by government departments and agencies, which should have been included in the report, can, if exploited appropriately through good co-ordination and collaboration, stimulate the growth of science-based industries. We see how the very successful UK pharmaceuticals and defence industry benefit from the National Health Service and defence expenditure. To ensure that this policy is pushed harder, I would suggest that the job descriptions of the chief executives of agencies and managers should include, which they do not at present, the objective to collaborate with and act as ambassadors for UK industry and commerce, as is quite common on the Continent, in the USA and Japan. Industry has told me of many instances where such a commitment would have been more helpful.
The White Paper recognises that the commercial exploitation of science is not usually best done in research organisations. On that point I depart a little from what was said by the noble Baroness, Lady Warwick. Universities should perhaps be included. New arrangements for spin-off companies and sharing of intellectual property announced here should enable and accelerate exploitation in the future. As a scientist, I helped to form a company to develop and exploit university research, but outside the university. But mostly, as managers of scientific establishments know very well, scientists are not entrepreneurs, although generally they want their research to be useful.
So I would qualify the conclusion of the Baker report and agree with the White Paper that exploitation of government and university research should be considered equally via open dissemination of data and working with existing companies—the US route—via commercialisation initiatives by the institutions themselves. Furthermore, financial controls in government institutions need to be kept under review, especially to ensure that their core scientific roles are not adversely affected. In that respect, again, I differ from the Baker report.
The most difficult task of all for government policy for the exploitation of science is the identification and appropriate financing of innovations. I congratulate the Government and the Minister on the diversity of such schemes as they have suggested. I look forward to seeing how those are implemented over the next few years.
8 p.m.
Lord Turnberg: My Lords, I, too, am grateful to my noble friend Lord Haskel for introducing this important debate. I pay tribute also to the DTI for its document which summarises an impressive and

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welcome list of government-funded initiatives. But admirable as they are, these proposals could be frustrated if the public at large increase their indifference, and in some cases antipathy, to science. This issue is recognised in the report. I quote:
"Were a climate of distrust to build up around science, it could drive scientists away from the UK and in the long run impoverish us".
I must declare an interest here as a long time medical scientist and as current scientific adviser to the Association of Medical Research Charities. Perhaps I may pick two specific examples of research activity which have caught adverse public attention with, I believe, detrimental effects for research and, consequently, industrial investment in the UK. They are two rather sensitive examples. The first is research involving animals. About 20 per cent of medical research is heavily dependent on animals. While a recent MORI report for the Medical Research Council appears to show most people supportive of such research where it leads to treatments of serious disease—especially cancer in the young—there is less support for animal research aimed at understanding the basis of human disease. More worryingly, most of those interviewed for the report were unaware of the very strict regulation and monitoring of animal research which is currently in place. Indeed, many of the controls are more stringent than those they asked for. But an adverse environment to such research is causing one of our most successful industries—the pharmaceutical industry—to consider withdrawing its investment in the UK and placing it elsewhere. There is an information gap, which needs to be filled, about the nature of, and necessity for, animal research and about the current stringent controls exerted on researchers by the Home Office so that the public can reach a more informed judgment.
The second example concerns GM crop research, which I know has been the subject of some interest in your Lordships' House. Public concern runs high. However, it is now almost impossible to undertake even the research which is so essential to see whether those concerns have any foundation despite a background of many years of experience in the US which have failed to yield any evidence of damage to the environment or to consumers.
Many bodies have a particular interest in efforts to improve the public's confidence in scientific endeavours. I know that the OST and my noble friend the Minister have shown particular interest in this matter. Improved public awareness can be achieved only by a clear demonstration of the benefits of the research and a fully transparent discussion of the risks. But what is clearly missing is an understanding of what are the best methods of engaging the public, a point well recognised in your Lordships' report on science and society. It seems that more research is needed into what methods will best achieve an informed consensus. I feel sure that the Minister takes seriously the need for such research.
8.5 p.m.
Lord Brett: My Lords, I welcome the White Paper and the boost it gives to funding for research. However, it is primarily focused on the science budget of the OST component and mainly goes to the universities. The £100 million for Research Council Institute infrastructure is also welcome after two decades of neglect.
I should like to make my point in the debate on a Cinderella area, as I see it. Much funding for science, particularly in support of public policy—including the environment and quality of life issues—does not come from the OST but from government departments; for example, MAFF. This funding stream is still declining, as the Commons Science and Technology Committee report on research expenditure and the forward look pointed out. The decline in funding is combined with a litany of privatisations of government laboratories—the National Engineering Laboratory and the National Physical Laboratory in 1995, the Transport and Road Research Laboratory and the Laboratory of the Government Chemist in 1996 and the MAFF laboratories linked with ADAS in 1997.
That has led to a seepage of scientific expertise from within the government machine, weakening both the scientific dimension of general decision-making and making it more expensive to access specific scientific advice. That seepage will become a flood with the fulfilment of the PPP for DERA and the consequent privatisation of thousands of defence scientists. The problem arises not only in relation to the outsourcing of science but also the demoralisation of those remaining within the service. The White Paper is an endorsement of the Baker study and the creation of a more arm's length approach. That will lead to fear among many scientists within the government science laboratories that still exist and even greater demoralisation will follow.
Heads of profession in the DETR, which has no public sector research establishments except for the HSE, have made the point that there must be strong internal scientific support to act as "intelligent customers" for research. Professor Beringer of the Advisory Committee on Releases to the Environment told the Select Committee that there was insufficient scientific secretariat support in depth for his committee to evaluate evidence effectively. Although the White Paper briefly mentions the importance of the "demand" side in funding and exploiting R&D, there is insufficient emphasis on that dimension of the equation and very fewproposals in the White Paper to carry it through. I ask the Minister to rectify that weakness.
As other noble Lords have said, the White Paper concentrates primarily on knowledge transfer and innovation but focuses almost entirely on "commercial" exploitation and on maximising the "commercial return" from publicly funded university and PSRE research. It does little directly to deal with the prime responsibility of private industry. Private industry still does not invest sufficiently in R&D. The

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UK is still near the bottom of the league for percentage of GDP spent on R&D by both public and private sectors, as has been evidenced by the Royal Society.
By placing the major emphasis on "commercialisation" there is a risk of distorting the primary purpose of public sector research. The need to attract and retain commercial contracts also has an impact on scientists because they come under pressure to modify research results to please sponsors. That is true, whether it is in universities or government research establishments. Similar phenomena will be seen to a greater degree if we continue in that regard. This is not an attack on commercialisation or on the need to see a greater speed and greater efficiency from research to product. However, in terms of the PSREs and the universities, it helps to contribute to a loss of public confidence.
We are seen more and more to be hand in glove, arm in arm and in collaboration with the private sector. In terms of health and the environment—whether considering BSE or GMOs—this has led to a loss of public confidence. The White Paper deals with some of these issues in the final chapter, "Confident Consumers". I hope therefore that we can help to put that right.
Finally, what about the workers? Here I echo the sentiments expressed by my noble friend Lord Hunt of Chesterton: there needs to be a much greater understanding, not only of how to resolve the issue of the brain drain, where we need to attract back from abroad our top scientists, but how to provide a much better pay and conditions structure to attract the best scientists and technologists.
My final plea would be to ask the Government to look again at fixed-term contracts. Perhaps 1 per cent or even 10 per cent prefer to work with fixed-term contracts, but 90 per cent of scientists like the certainty of being able to pursue a career at a scientific establishment or in a university free from the fear that every two or three years their livelihoods are put in jeopardy. That issue needs to be taken on board.
In all, along with other noble Lords, I warmly welcome this White Paper.
8.10 p.m.
Baroness Sharp of Guildford: My Lords, I should like to join with other noble Lords in thanking the noble Lord, Lord Haskel, for having initiated this debate. I am only sorry that we have so little time in which to discuss the subject. Many speakers have raised points that I should have liked to have spoken on. The noble Baroness, Lady Warwick, spoke of the problems of staffing at universities. My noble friend Lord Dahrendorf discussed the dangers of over-bureaucracy and the noble Lord, Lord Brett, covered some of the problems afflicting the public sector research establishments as well as touching on the issue of contract researchers. All those matters are dear to my heart.
I should like to make three main points. First, from these Benches I should like to say how very much we welcome the White Paper. Many aspects of it are
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excellent. The long-awaited recognition that science and technology constitute important parts of a system of innovation, where the relationships are not linear but rather where the feedbacks within the system are extremely important. I welcome also the emphasis placed on the science base itself, not only as a source of innovation but also as a vital trainer of skilled labour within the high-tech sector of the economy and as a catalyst for local community initiatives. I welcome, too, the fact that at last we have a Government who recognise that, in addition to promoting high-tech firms, we need to concentrate on the ordinary run of small and medium-sized enterprises and ensure that we help to improve their performance.
Secondly, having welcomed the White Paper, I should like to add how pleased I am to see the emphatic inclusion by the Department of Trade of Industry of the importance of the successful teaching of science in schools. The paper recognises the vital importance of the need to enthuse school students about science. However, I am worried that at present the Department for Education and Employment is underestimating the depth of the crisis in science teaching in our schools.
Recently I held discussions with the Institute of Physics. The number of those graduating as teachers in physics has fallen drastically throughout the 1990s. Seventy per cent of the profession are now aged over 40. Furthermore, we are not seeing sufficient graduates to replace even half of those who are retiring, and a disproportionate number of those going into teaching are those with third class degrees or worse. The same is true of mathematics and, to a somewhat lesser degree, of chemistry. If we do not have in place sufficient teachers in these core subjects, how can we hope to enthuse the next generation? Where will our next generation of scientists come from?
Thirdly, while I am delighted that at long last we have a Government who do recognise the importance of networks between firms, universities and colleges of further education, the sum allocated to them in the comprehensive spending review and echoed in the White Paper—£50 million—is derisory. One need only look at what is being spent by the German Länder to know that more is needed if regional development agencies are properly to be used as catalysts in this area.
Frankly, we on these Benches believe that the problem lies with the Treasury, which has never trusted local authorities of any kind or shape, let alone regional development agencies, to spend money. They must be given some leeway to raise capital in their own right. This country is the only one in the world that restricts the local raising of capital to such an extent. This issue should be considered because the RDAs need access to far more money than has been envisaged in this paper.
Finally, given the time limitations, I can say little more. I feel that this is an extremely important White Paper which raises many interesting issues in relation to our economy. It is a shame that we have had only

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one hour in which to debate it. I have discussed with the noble Lord, Lord Haskel, the possibility of raising the matter again in the new year as a Wednesday debate. If he does not do so, then I shall.
8.15 p.m.
Lord Northbrook: My Lords, I should like to thank the noble Lord, Lord Haskel, for initiating this important debate. We have had some excellent and thoughtful contributions. From these Benches, I should like to point out that the idea of government-industry partnerships within the fields of science and innovation are not original policies from the present Labour Government. Industry and university links were also encouraged before New Labour came to power. The Conservative government were keen to capitalise on opportunities generated through rapidly increasing technological change.
At the time of the last election, the party pledged £35 million in investment to help industry to take advantage of these developing areas. Also, in 1994 the last administration presented a paper outlining the dream of multiple competing and interconnecting superhighways, funded by the private sector but overseen by the administration's commitment to regulatory stability. The administration took a lead in developing superhighways in education and health. Furthermore, the technology foresight initiative in 1994 united industry and universities to recognise future enterprise opportunities and helped to channel the UK's strong scientific base into relevant research.
Moving on to the Government's White Paper, it describes Great Britain as having only 1 per cent of the world's population, yet generating 6 per cent of the world's research and development. These statistics were also true under the last government. Funding at that time for science and engineering was £2.3 billion, having risen 10 per cent in real terms through the period 1987–97. The Conservatives' commitment to science was emphasised by the 30 per cent increase in the government's science budget since 1979.
The White Paper states that there will be closer links between universities, businesses and industries through a range of measures such as the £140 million higher education innovation fund. Also included is the investment of a new £1 billion for a programme in partnership with the Wellcome Trust to renew the infrastructure for science, providing buildings and equipment for research. In addition, £250 million is going to boost research work into genomics, e-science, nanotechnology, quantum computing and bioengineering. I note also the annual £50 million regional innovation fund to enable regional development agencies to support "clusters" of science-related projects. Can the Minister tell the House how much of this is new money and how much has already been included in previous departmental budget announcements?
Finally, I should like to ask the Minister how the Government's policy on IR35 is consistent with their encouragement of science and innovation. I shall
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quote from a letter in The Times today from a disgruntled professional contractor. He states the effect that IR35 will have on him:
"short of getting a contract abroad [I] can only see a bleak future of living off benefits … Contract staff provide the core of specialist expertise in Britain's high-tech industries and a mobile, flexible and highly skilled work force. This system works well for client and supplier, and Labour are about to wipe it out in one go".
No wonder there is to be a legal challenge to the measure. The Times again stated today that it is being bombarded with e-mails on the subject. Can I urge the Minister to stress to the Chancellor the seriousness of the situation? Among other things, his appointment was meant to demonstrate that the Government would show a friendly face to business. This measure has the worst possible effect on the new economy and I ask the Minister to see that it is scrapped.
8.19 p.m.
The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, I am delighted to respond to this excellent debate and to the many thoughtful and expert contributions made to it.
People often talk of the knowledge-driven economy as if it was still some way in the future, as if it applied only to certain sectors of industry, and as if it applied only to dot.com companies. In fact, it is here and it is now. It applies to all parts of the economy—manufacturing and services—and it has already brought unprecedented changes.
In the global economy, capital is mobile, technology can migrate quickly, and goods can be made cheaply in low cost countries and shipped to developed markets. This country cannot compete simply on low labour costs, the supply of raw materials or land. Now more than ever, business must seek competitive advantage by exploiting capabilities which its competitors cannot easily match or imitate.
These distinctive capabilities must be knowledge, skills and creativity—capabilities which help generate high productivity business process and high value goods and services. That is why it is so important that we have an excellent science and engineering research base and why we need to build in incentives to encourage knowledge transfer.
The excellent science and engineering research base that we have in this country is one of our most important assets in the knowledge-driven economy. With 1 per cent of the world's population we in fact carry out 4.5 per cent of the world's scientific research; we produce 8 per cent of the world's scientific papers; and we receive 9 per cent of the citations for world research.
It is encouraging that increasingly this research excellence is being turned into jobs and wealth. Britain is today home to strong science-based industries in aerospace and pharmaceuticals, as well as being a leading centre for optoelectronics, biotechnology, many design disciplines, computer games and mobile telephone software and services.
In 1998 the UK's high-tech exports per capita were the highest of the G7 countries and have grown by 9 per cent per annum since 1992.

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We should also note that our universities have undergone a sea change over the past few years in regard to creating wealth from their undoubted excellence in science and technology. A survey for the Office of Science and Technology identified 223 businesses spun out from, and wholly or partially owned by, UK higher education institutions in 199798. Of course, many other businesses are spun off without universities retaining a stake in them.
There is a new spirit of enterprise taking hold in our universities across the country, from Southampton to Warwick, from Leeds to Dundee. Manchester and Liverpool universities, for example, are leading a boom in biotechnology and pharmaceuticals in the North West. Oxford University's Isis Innovation is developing a cluster of high-tech businesses in the Midlands. British universities are now following the example of American universities such as MIT, Stanford and Berkeley and becoming central to local and regional economic development. Cambridge University and the surrounding "Silicon Fen" cluster has produced already two billion-dollar companies in ARM and Autonomy as well as attracting the Microsoft laboratory.
The aim of the science and innovation White Paper, Excellence and Opportunity, is to aid and accelerate this transformation of the British economy into a knowledge- driven one and to help all regions to participate fully in it. It has three goals: first, to maintain and enhance the excellence of the science base; secondly, to increase the incentives for innovation; and, thirdly, to make certain that people have a confident relationship with science, that it is seen as an opportunity and not a threat. Against each of these goals we set out practical proposals, with sums of money attached to them.
I shall now deal with some of the points that have been raised. I am particularly grateful to my noble friend Lord Haskel for his thoughtful Question and for his contribution. I very much agree with him about the importance of striking the right balance in regulation. I believe, though, that with the right approach regulation can be a driver for innovation and new markets rather than a block.
My noble friend also raised the issue of the structure of the DTI. We are taking a fresh look at the DTI's broader business innovation agenda and the results will be announced in due course. As to the question of foresight—another issue raised by my noble friend—we shall be looking at how foresight can be put at the centre of policy making in the DTI.
He also referred to the financial impact of technology knowledge-intensive sectors. I should point out that they now account for 38 per cent of the value of the London Stock Exchange compared with 20 per cent 10 years ago. The high-tech sectors of British industry are no longer peripheral to the economy; they are absolutely essential to our economic future.
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The noble Lord, Lord Paul, raised the question of SMEs. I hope that it is clear that we did not ignore them in the White Paper. The small business research initiative, which will help small businesses to take part in government research funding, is one part of the response; and the higher education innovation fund is aimed squarely at giving universities incentives to carry out knowledge transfer to smaller businesses.
We want to see a diversity of excellence in our university system. Some universities should continue to be world-class research universities, but others have a role in working with local businesses and providing excellence in terms of knowledge transfer. The regional innovation fund is aimed also at the networks which will help small businesses.
I do not agree with the noble Lord, Lord Dahrendorf. I think many vice-chancellors will agree that the RAE has had an impact in driving up research excellence. The White Paper is very clear about the importance of basic research, and curiosity-driven research is extremely important to this. I would draw his attention to the sentence which reads
"The importance of excellent, curiosity-driven research cannot be emphasised too strongly. It is part of our culture but also of vital importance to industry".
We want excellent basic research and excellent mission-driven research. Both are essential and should exist within the research base. I know that those who are keen on mission-driven research will say that the White Paper is all about excellence in basic research and there is not enough on mission-driven research. Those who are interested in excellent research will say it is all about mission-driven research and not about excellent research. We need both—and the White Paper is about both.
White Papers have to have a limited field. This is a White Paper about science and innovation—and "innovation" in this context is clearly about science and technology-driven innovation. It is not about creativity over the whole field of human endeavour—that is a much wider subject—but about the science base. I make no apologies; that is what it should be about.
I agree with the noble Lord, Lord Hunt, that the job of Science Minister is rapidly catching up with the Home Office in terms of difficult decisions. I agree that it will probably get worse before it gets better. However, the Baker report got it right; exploitation can sit alongside the role of the public sector research enterprises perfectly well in terms of giving independent advice.
So far as concerns the number of funding schemes—a point raised by the noble Baroness, Lady Warwick—I entirely agree with her point. This is an area where we are trying to simplify the number of schemes available to universities. I hope that the higher education innovation fund is a step in that direction. It replaces a previous scheme, the HEROBC fund, and puts it on a permanent basis. That is a step forward.
So far as concerns the noble Baroness's point about other research areas, funding of social sciences comes via the ESRC and can be expected to benefit, to a

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degree which is still to be determined, from the additional funds made available for the science budget.
I have no reason to believe that the science budget has benefited at the expense of funding for the DfEE or the Arts and Humanities Research Board, which is funded by the DfEE. I recognise that in the knowledge-driven economy the boundaries between the arts and humanities and science are becomingly increasingly blurred. The Council for Science and Technology has decided to examine this very issue. I very much look forward to its report, which I shall study with great interest.
I strongly agree with the noble Lord, Lord Turnberg, that much more needs to be done to communicate to the public the stringent regulations on animal experimentation and the many steps to improve the welfare of animals.
The noble Lord, Lord Brett, raised the question of the public sector research establishments. In this context, other government departments need to decide how research can contribute to their objectives. I do not agree that the Baker report has led to demoralisation. It was broadly welcomed as giving public sector research establishments more devolved powers and greater freedom. The £100 million to repair the impoverished infrastructure of research establishments should surely be seen as a statement of confidence in their future.
As regards short-term contracts, we are keen to reduce their number. There is an initiative to introduce more long-term contracts in universities.
I agree with the noble Baroness, Lady Sharp, that there is a problem in the teaching of physics. It is interesting that the number of children taking A-levels in science is rising faster than the general increase in A-levels. However, I strongly agree with the noble Baroness that we have the problem of teachers teaching subjects in which they have not been trained. I do not believe that you get inspired teaching in physics if it is done by biologists, or vice versa.
So far as concerns RDAs, we gave them £50 million for regional innovation funds. That was a promising start. We have also given them much more flexibility in terms of funding so that they can prioritise their plans. That is a good step forward as well.
The noble Lord, Lord Northbrook, raised a point about the performance of the previous government. I believe that what happened to universities in the period from 1995 to 1997 in terms of cutbacks in their capital expenditure, coming on a previously low figure, was an unmitigated disaster. It led to the appalling state that our laboratories were in when we came to power, and it has taken nearly £2 billion pounds over a six-year period to remedy.
The noble Lord also raised the case of IR35. All that does is to say that the normal rules on self-employment apply to people who set up companies but work essentially for one business. All it does is apply to those companies the same rules on self-employment as apply to everyone else.
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Perhaps I may end with a word about the role of science in society. Work done by the Office of Science and Technology and the Wellcome Trust shows that the British people are not "anti-science". Three-quarters of them are amazed by the achievements of modern science and more than two-thirds agree that science and technology are making our lives healthier, easier and more comfortable.
I believe that science can bring huge benefits to our society, not only in terms of creating wealth and jobs but also in terms of improving the nation's health and providing a solution to many of our environmental problems. The measures set out in the White Paper provide a solid foundation for building a dynamic knowledge economy in the UK. They will ensure that we can harness the full potential of science to contribute to prosperity, jobs, environmental sustainability and the health of the nation.

Countryside and Rights of Way Bill
8.34 p.m.
House again in Committee.
Lord Willoughby de Broke Lord Willoughby de Broke moved Amendment No. 441B:
After Clause 61, insert the following new clause—

MAINTENANCE AND SIGNAGE OF PUBLIC WAYS
(" .—(1) It shall be the duty of the local highway authority to maintain, and provide adequate signage for, any public way under this Part.
(2) The local highway authority may contract with the relevant land manager for the performance of such works as may be necessary in discharging the authority's duties under subsection (1).").
The noble Lord said: The amendment does not seek to extend the rights laid down in the Bill or to restrict any rights. It seeks simply to improve in a modest way some of the Bill's provisions; namely, to require the local highways authority to provide adequate signage and maintenance of rights of way. The noble Lord, Lord Greaves, mentioned bridleways and I intend the amendment to include bridleways, footpaths, cycle-ways and all other rights of way.
The present situation seems slightly unsatisfactory. The highways authorities are required under Section 27 of the Countryside Act 1968 to erect signposts where rights of way leave a metalled road, but they merely have the power, not the duty, to provide way-marks along that path. That seems slightly absurd. We have a position whereby one can come off a road and there is a way-mark, a signpost, stating that there is a right of way. You can then follow that sign and you find to your dismay, if your are a walker, a rider or cyclist, that it is perfectly possible that there are no way marks guiding you further along the route after the sign that you first followed.
I am grateful to my noble friend Lord Rotherwick for reminding me that the signs in Switzerland and France, for example, where I have walked for many years are very much better than in this country. It

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seems a great pity that it is not a statutory requirement that local authorities should have a duty, and not simply a power, to make sure that all rights of way are properly marked. That leads to frustration on the part of walkers and riders, and for farmers and landowners, who are irritated by repeated, if unintentional, acts of trespass. Getting lost is a major disincentive to people using the rights of way.
I have several rights of way and bridlepaths on my farm and I am sent small way-marks by the local authority. I go out with a bag of nails and a hammer and put them up, and that is fine. But I could be bolshy about it, or lazy, or were I to spend too much time in the House of Lords, I could become so. Would I then be liable to prosecution? I do not think that is the case, but it is not helpful unless someone puts these signs up. At present there seems to be no requirement on anyone in particular to make sure that rights of way are properly way-marked. My amendment seeks to introduce such a requirement.
It seems to me entirely appropriate at this stage of the Bill, when the Government are planning to rationalise the law on rights of way, that the relevant authority should have a "duty" to place way-marks throughout the length of a right of way and not only where the right of way begins.
The same rationale should apply to the maintenance of rights of way. Again, the present position is unsatisfactory. In theory, rights of way are maintainable at public expense by the highways authority, save, of course, where farmers have ploughed up the land for cultivation, in which case they have a perfectly proper duty to reinstate them. Otherwise, the lines of responsibility are blurred. It is uncertain who is responsible for maintenance of rights of way. The result is often rights of way or bridleways that are inadequately marked or sometimes impassable—I have had that experience when I have used bridleways. I hope that the Government will take that part of my amendment in the spirit in which it is intended as it will improve the Bill for both users and landowners.
The second subsection of my amendment is intended to encourage local authorities to contract with land managers, as we have become used to calling them—farmers, landowners or tenants—to maintain rights of way. I believe that that would be an advantage because local authorities would then know for certain that the rights of way were being properly maintained. It would save them a good deal of time and trouble. They would not constantly be pestered by people who want to know where the rights of way are and why they are not being properly maintained. After all, they will have plenty of other things to do under the rights of access provisions in the Bill.
There are perfectly good precedents for such arrangements. I have been in touch with Hampshire District Council and Surrey County Council, both of which have these sort of agreements with landowners; for example, to keep field-edge paths, foot bridges, stiles or gate-ways clear of brambles and thistles. I believe that this sort of provision is now necessary.
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I pray in aid a short section from the publication by the then Countryside Commission, Rights of Way in the 21st Century, which, after all, is what we are talking about. In connection with the duties of highway authorities, it says:
"The Commission believes there can be few, if any other statutory duties which local government, taken as a whole, carries out so poorly".
I believe that my amendment would put the matter right. When he responds, I hope that the Minister will look favourably on my proposal. I beg to move.
Baroness Scott of Needham Market: I should appreciate a little clarification on the amendment. As written, it seems to me that it relates to the signing of rights of way, whereas the noble Lord seemed to be referring to the problem of maintenance. In terms of the signage of rights of way, local authorities already have quite adequate powers. In fact, quite stringent targets were originally set by the Countryside Commission on how they should be signed. It may be helpful to share with the Committee a phenomenon that I observed as chair of rights of way in Suffolk. A wooden public footpath sign erected by the local authority seemed to last about five or six days, while a similar sign that said "Keep Out" seemed to last for about 20 years. I never did understand why.
Lord Willoughby de Broke: My amendment does deal with the maintenance as well as the signage for rights of way. Perhaps the Minister could clarify who has the duty to way-mark. I am not talking about signs off the metalled road where rights of way begin; I am talking about signs in the area through which people pass. There is no clarity at present as regards who is responsible for marking those rights of way.
Baroness Miller of Chilthorne Domer: I echo the points made by my noble friend about the frustration experienced by many local authorities in this respect. Although they may erect these signs, for one reason or another they are either vandalised, with the posts being taken out so that they fall over and people cannot see them, or, alternatively, in some particular trails where an effort is made to mark these rights of way with very nice, attractive way-markings, they are taken away by souvenir hunters who walk the trail—and the tops of the screws may even have been drilled off!
There may be a few local authorities which do not worry too much about signage. They need to be reminded that they should be undertaking this task. Indeed, I can understand why the noble Lord referred to this as a "duty". However, the difficulty here is that the reason why such rights of way are not properly marked is that the signs disappear.
As regards the second part of the amendment, I was under the impression that highway authorities already have the ability to contract with local landowners. Indeed, some of the more successful ways of keeping rights of ways open—for example, as under the parish paths partnership, which is probably the shining beacon in rights of way work at present—have worked on that exact premise.
Baroness Byford: I rise to express my support for the thrust of the amendment moved by my noble friend Lord Willoughby de Broke. I have three quick points to make. First, the noble Baroness, Lady Scott, said that there were already adequate powers. My question to the Minister is: are they being used? If they are not, can he say what further powers we should be considering to ensure that they are used?
Secondly, as regards the responsibility for land management, I assume that some authorities already ask landowners to undertake that task. Perhaps the Minister could assist in that respect. Thirdly, I should declare and interest: like many noble Lords in the Chamber, I am a member of the National Trust. I suspect that the trust is one of the organisations that has more signage than anyone. The trust does not seem to lose its signs to the same degree as local authorities. Of course, it may happen but I am unaware of it. I do not know whether this situation is a reflection of the fact that quite a few local authorities cover both villages and urban areas. However, it is a thought. Alternatively, it may be that the trust is so good at replacing its signs as soon as they are lost—
Lord Greaves: The point that my noble friends were hinting at but which they were too delicate to state is the fact that, in my experience, the people who remove these signs are the landowners and the farmers who do not want people traipsing over their land.
Baroness Byford: All I can say is: "Shame on you, Sir!" That is totally unacceptable and untrue. The noble Lord and I will enter into great clashes as our debates continue if he wants to take that view. Indeed, it is not even a party political point, and I would not suggest that it is.
Lord Greaves: I am sorry if the noble Baroness did not like what I said. However, it is an accurate reflection of what happened in our area. The local authority put up several green footpath signs. They all mysteriously disappeared; and we all know where they went. In one classic case the landowner actually painted over it with a sign indicating his own premises.
Lord Willoughby de Broke: I agree with my noble friend Lady Byford. I take exception to the remarks made by the noble Lord, Lord Greaves. He may have had an unfortunate experience. Indeed, it may be true that he knows what happened to those signs. That may or may not be the case. I do not know. My own experience is that I put up the signs myself; I do not take them down.
The Earl of Mar and Kellie: It may be worth taking some steam out of the debate by reflecting on my holiday in Brittany this summer; indeed, our debates have become a bit of a travelogue. I noticed that the authorities in Brittany had wisely painted the way marks on to existing features, which seemed to get around all these problems.
Baroness Byford: Perhaps I may finish the remarks that I intended to make before I was so nobly
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interrupted. I issue a challenge to the noble Lord. He can certainly return to this matter at a further stage of our proceedings. If he has facts and figures to show which landowners have been doing this, he ought to put forward such figures to back up his suggestions. I also suggest to him that unfortunately—and this is not something of which I am proud—signs within urban areas, which are nothing to do with landlords, also get defaced. The poor authorities concerned are also having to put that matter right.
My point to the Minister is as follows. If the National Trust can manage to keep its signs intact with not too much difficulty, perhaps there are some lessons to be learnt.
Earl Peel: I should like to return to the very important point made by the noble Baroness, Lady Miller, about the vandalism of such signs. There is no questioning the fact that this does happen on a fairly extensive basis. However, I am not sure that that is necessarily an excuse for local authorities—or, indeed, landowners—not to carry out their statutory responsibilities. It takes us back to an amendment that I moved under Part I of the Bill, which my noble friend Lord Jopling demolished rather effectively. Nevertheless, I believe that the principle of my amendment stills stands; namely, that removing or defacing signs should be an offence under Schedule 2 to the Bill, as well as being a criminal offence. Quite frankly, that is the only way that this very serious problem will be addressed.
Lord Whitty: As with everything else on the subject of rights of way, this is a complex area. I hope that the sensitivities of landlords, landowners and ramblers can be removed from the debate and that we can discuss the detail of the situation. There are problems both as regards the removal of signs and the abuse of signs. The amendment is not in line with what the noble Lord, Willoughby de Broke, seems to be seeking. It could be interpreted as applying to all highways because certain provisions in Part II—in particular Clauses 55 and 60—apply not just to rights of way but also to highways generally. Therefore there is a problem with the drafting of the amendment.
However, even if that is not the intention, the Government do not believe that there is any good reason for making all rights of way maintainable at public expense. The situation is complicated because many footpaths and bridleways are already maintainable at public expense as that was the situation before 1959. The Highways Act 1959 brought about change but any footpath or bridleway created before that time is publicly maintainable unless that liability has subsequently been extinguished. So there is not even a clear-cut dividing point from 1959. A number of byways and bridleways are therefore maintainable at public expense: others are not.
Many rights of way are privately maintainable. To create a liability for the public purse overnight could have significant resource implications for highway authorities. The Government see no reason why a

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person who is liable for maintaining a highway should simply have that burden lifted and have it placed on the taxpayer. After all, the landowner knew of the existence of the right of way when he inherited or acquired the land. The provision for him to maintain the right of way should rest with him.
There are, of course, provisions in the Highways Act which enable someone who is responsible for maintaining a highway to apply to the magistrates' court for that highway to be made publicly maintainable and for their private liability to be extinguished. There is no obvious reason why that should be bypassed by the blanket provision which is proposed.
The part of the amendment which relates to signposting of rights of way also seems unnecessary. Section 27 of the Countryside Act 1968 requires a highway authority to erect signs where a footpath, bridleway or byway leaves a metalled road. Highway authorities are also required to erect signposts along a right of way to assist those unfamiliar with the locality. Landowners' consent must be obtained before a signpost may be erected on their land, but the signposting is the public authority's responsibility. We believe these powers are sufficient to ensure that the public know which rights of way are open to them and which are not.
The issues which have been raised about inadequate signing as compared with other countries need to be addressed. They may well be addressed local authority by local authority in the improvement plan for the right of way network. I do not think that we need to transfer the responsibility or to change the powers in the way that the noble Lord's amendment suggests. I therefore hope that he will not press it.
Lord Willoughby de Broke: Before the noble Lord sits down, is he saying that the present power is adequate and that it does not need to be made a duty? That is what I am trying to get at. We heard earlier from Members on all sides of the Committee that signage in this country can be inadequate. To make this provision a duty rather than a power would be comparatively simple. I do not believe that it is a complicated matter. It would clarify the issue for users, the highway authority and landowners.
Lord Whitty: There is a relevant duty in Section 27(4) of the 1968 Act which requires highway authorities to erect such signs as may in the opinion of the highway authority be required to assist persons who are unfamiliar with the locality. This may not be the absolute requirement that I believe the noble Lord seeks. It may vary in its application from area to area. However, as I say, the relevant duty already exists. To seek to transfer responsibility for maintenance and to alter the balance of duty, albeit marginally, is to go too far. If the noble Lord wishes to pursue the matter, he should separate out the two issues.
Lord Willoughby de Broke: I am most grateful to the Minister for that full reply and for trying to clarify the
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position. I shall return to the matter on Report with an altered amendment. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Selborne The Earl of Selborne moved Amendment No. 442:
Before Clause 62, insert the following new clause—

EASEMENTS OVER COMMON LAND ETC
(" .—(1) Where a way across a common or village green has been used as of right prior to 3rd November 1979 as a vehicular access to a dwelling-house, the dwelling-house shall be deemed, unless otherwise entitled, to have the benefit of an easement for the passage of mechanically propelled and other vehicles along the way.
(2) Subject to subsections (3) and (4), upon the first occurrence of a relevant event in respect of the dwelling-house, any person who immediately before that event held the benefit of a right created by subsection (1) shall pay a reasonable proportion of the value of the dwelling-house to the owner of the common.
(3) No sum shall be payable under subsection (2) if the use of the way to access the dwelling-house (or a dwelling-house in a similar position) began before 1st December 1930.
(4) Subject to subsection (3), the proportion payable under subsection (2) shall not be greater than 2.5 per cent.
(5) Where an easement is granted by express agreement to create a vehicular right of way across a common or village green to a dwelling-house, the owner of the dwelling-house shall not be liable to pay a sum greater than 5 per cent. of the value of the dwelling-house at the date of the agreement for a way from his property to the nearest convenient highway.
(6) Any dispute as to any sum payable under this section shall be referred by agreement to arbitration or referred to, and determined by, the Lands Tribunal.
(7) If no relevant event has occurred the sum referred to in subsection (2) shall be payable 30 years after the coming into force of this section.
(8) The owner of a dwelling-house may at any time prior to the occurrence of a relevant event make a payment as if it is a payment under subsection (2).
(9) In this section—
"owner", in relation to any land, means any person, other than a mortgagee not in possession, who, whether in his own right or as trustee for another person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let;
"relevant event", means—

(a) transfer of the freehold ownership,

(b) creation of a lease for a period greater than 21 years,

(c) if the owner is a company, any change in the ownership of the company.").

The noble Earl said: This amendment seeks to address the problems which have arisen over charges for vehicular access over common land. It is an issue which has caused great consternation to a large number of householders who have driven across commons without hindrance for many years. Some will have driven across them for 70 years or more and have only recently discovered that in all that time they had no legal right to do so. They are now in some, but not all, cases facing unexpected and high charges for access from the common owner.
The problem stems from the Law of Property Act 1925 and from subsequent road traffic Acts. The Law of Property Act 1925 provided for owners of commons to execute a deed of public access to their common

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land for the public to walk on it. In return, the landowner was allowed to restrict vehicles and consequently, of course, the landowner had the right to charge for access. The position was aggravated in one sense by the road traffic Acts from 1930 onwards which made it a criminal offence to drive over common land without the owner's permission.
I am sure that the legislation was not intended to disrupt existing access arrangements. It is clear that the purpose was to prevent people driving across commons—a worthy objective. Many owners behaved thoroughly responsibly—I refer to the National Trust which has already been mentioned in another context—and did precisely what should have been done in 1925 and 1930 and granted rights, licences or entitlements of one kind or another to allow people (presumably for a one-off payment) to have access to their households. That was a perfectly reasonable way to behave. However, in a number of cases the owners of the commons simply said, "We know you drive across the commons. We shall not disrupt the arrangements. Your house may have been there for several hundred years, or at least 50 years, and we shall not disrupt the arrangements", and they did not. The position is further complicated by the fact that no one knows who owns a large number of commons anyway. Therefore if a householder tried to get an entitlement to access to his house in those circumstances he would not get far as there is no one to grant that entitlement.
As I say, the position remained unexceptional for the householders until the 1990s. Partly as a result of the 1993 Court of Appeal case, Hanning v. Top Deck Travel Ltd, it became evident that people who thought that they had a prescriptive right of access to their houses because of long use of such access did not have that right at all for the simple reason that as soon as it became a criminal offence to drive on the common land one could not acquire a prescriptive right as a result of a criminal act. Suddenly people faced charges from owners who woke up to the fact that they had a nice earner on their hands. People who for 70 years or more had failed to charge people for access to their houses realised that they now could and that they could send in the bill 70 years later and there was not a thing the owner of the household could do about it. They were trapped. They found that the prescriptive rights which their professional advisers had told them of did not exist. Presumably the houses had changed hands and the issue was never raised by vendors' solicitors, purchasers' solicitors, mortgage providers or valuers. These people were no doubt remiss. They did not pick up on the point that the prescriptive rights could not exist as a result of road traffic Acts which made such access a criminal offence. As noble Lords will realise, it is a great shock for a number of these householders to find that they are suddenly presented with a bill after 70 years or more. Sometimes the bill for the access roads amounts to up to 10 per cent of the current value of the property.
I do not say that it is a widespread, universal habit; it is not. Only a relatively small minority of owners engage in it. Many owners have acted, and continue to act, in a way which acknowledges that when the law
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was changed to make it a criminal offence to drive on commons the purpose was to stop vehicles driving over the commons but not to stop people getting to their homes. That clarification of the law—if that is what it is—was not regarded as a means suddenly to charge great sums of money. But that is what happened in a number of cases. It is those cases which have caused outrage in certain quarters.
In another place, Sir George Young initiated an adjournment debate on the subject. The case drawn to his attention related to Newtown Common. The owners of the common had never been identified until a recent court case which established, I think to the surprise of the family who had sold the lords of the manor rights, that the ownership of the common went with the lord of the manor. That was complete news until the court determined that to be the case. With the new owner came a complete change of policy. Whereas the previous owners had acquiesced over access to the houses, the new owner started sending letters to each of the houses whose owner had to go over part of the commons to gain access to his house. The letter stated that,
"under the terms of an amnesty the owners will accept 6 per cent of the open market value of your property provided an agreement is reached before the 15th November 1999".
That figure and date have since been modified, but clearly that was no little shock.
Surrey County Council is seeking considerable sums for access over commons in its ownership as are a number of parish councils even though they acquiesced, apparently quite happily, in allowing vehicular access for so many years.
What seems particularly inequitable is that had these owners behaved in the responsible way that other owners behaved and put access agreements on a proper footing many years ago it would have been much easier to find long-standing residents who could testify to the use of these tracks going back to the early years of the century. Now it is impossible. After 70 years it is no longer possible to establish one's prescriptive rights. It is no good saying, "My house is 200 years old. Here is a track." One cannot prove that the track has not changed.
Failure to send a bill for 70 years is an abuse of the owner's rights. Bills are now being sent for 6 per cent or even 10 per cent to continue to have access to a house. It will be ultimately for a land tribunal to, determine whether that is the right figure. But 5 per cent or 6 per cent may well stick in some cases. The owner of the commons stands to gain a windfall from a failure to present a bill 70 years ago.
I am sorry for that lengthy introduction but noble Lords will agree that it is unusual to point out a failure of the law over some 70 years. My amendment seeks to alleviate the financial burden that these householders face so unexpectedly. It makes a differentiation in charge between those who have enjoyed unfettered access for a long time and those who have had access for a short time. It is an important principle. The amendment limits the charge which can be imposed on householders to a percentage of current value. The

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amendment suggests a zero charge for houses built before 1930; 2.5 per cent for houses built between 1930 and 1979; and 5 per cent—some might consider that the going rate—or even higher for houses built since 1979.
The amendment provides also that payment is to be made either at the change of ownership of the house or at the creation of a lease exceeding 21 years or sooner if the householder chooses. If none of those events occurs the payment must be made after 30 years.
The amendment has the effect of removing uncertainty from currently threatened householders who will know the upper limits of their liability. I have no doubt that many will be horrified that they face such a bill but at least they have the certainty of knowing the upper limits of this access charge. I beg to move.
9 p.m.
Lord McIntosh of Haringey: Perhaps it may help the Committee if I respond immediately because we have some positive things to say about the amendment—and that may even curtail debate, God forbid!
The Government have made clear that we have considerable sympathy with the objectives of the amendment. We agree that landowners should not be able to make excessive charges for granting rights of vehicular access across their land when such access has been enjoyed for many years without problems arising.
As the noble Earl made clear in his excellent speech, the situation has arisen because the Law of Property Act 1925 and road traffic Acts since 1930 have made it a criminal offence to drive over common land without the owner's permission. Because it is an offence, prescriptive rights cannot be acquired through long use. This has often been overlooked when properties on or adjacent to commons have been built or sold, with a result that many people have been driving over commons to get to their homes or other property in the mistaken belief that they had a legal right to do so. Their surprise at discovering that this is not the case no doubt turns to bewilderment, or worse, when they are suddenly presented with a large bill which can be as much as 10 per cent of the value of their property should they wish to acquire such a right.
We understand and share the objectives of the noble Earl. However, there are a number of problems with the amendment which means that we cannot accept it. First, it is doubtful that use of the way can be as of right because driving across common land is a criminal offence. Secondly, the amendment does not specify a period of time for which the access had to be used. As drafted, one day's use prior to November 1979 appears to qualify. It may simply be that the word "since" has been omitted from the amendment. I do not make any serious point on that.
Thirdly, the amendment would not give the property owner any option. Provided the conditions were met, the statutory easement would arise and he would have to pay for it, although he could defer payment. Fourthly, it is not reasonable to expect the
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landowner to wait for up to 30 years for compensation for the grant of rights over his land. Finally, the dispute resolution procedures in subsection (6) are inadequate.
We recently announced our intention to table amendments on Report. We have made details of our proposals available to your Lordships, but I shall set them out in summary. We intend to set criteria that have to be met for a statutory right of vehicular access over common and similar land to arise. The underlying principle is that the property owner or his predecessors must have been using the access in such a way and for such a time that had the land not been common land or other land on which driving is prohibited, a prescriptive right of access through long use would have been acquired.
Secondly, we propose to set a limit on the amount of compensation that the property owner has to pay to the landowner. We have been at pains to point out that it would not be right for the property owner to pay nothing to secure an undoubtedly valuable right. We have proposed a maximum compensation of 4 per cent of the value of the property with access or one third of the difference between the values of the property with and without access if that is lower. I believe that that is in line with what the National Trust and Surrey County Council charge. Although we have concluded that 4 per cent is an appropriate maximum, we shall listen to any alternative views.
In the circumstances, I hope that the noble Earl will accept that, subject to any consultation that takes place between now and Report stage, it is better to proceed on that basis than to press the amendment.
Baroness Byford: I thank the Minister for making his contribution so early. I am sure that my noble friend Lord Selborne will be grateful for it. We are grateful to the Government for coming forward with their own proposals and for giving us a chance to think about them. We are due to reflect our thoughts back to them on 16th October. I do not wish to delay any more, except to say that I fully understand why my noble friend raised the issue and am grateful to him for having done so. Even a maximum of 4 per cent will be an unwelcome surprise for some. Quite a few elderly retired people live in such houses and many could have difficulties with such a sum, particularly if they bought their property cheaply or if it has been passed down the family and is now valuable. I do not wish to prolong the debate. We are happy to reflect on the issue and come back.
Earl Peel: I have a question for the Minister that goes to the root of the problem. I have a great deal of sympathy with the noble Earl's arguments. There is clearly a problem. As I understand it, the Road Traffic Act 1930 specifically refers to common land to ensure that there is no doubt that it is not included. Is it sensible, justifiable or, indeed, legal to differentiate common land from non-common land? Common land is privately owned, albeit subject to certain rights such as grazing rights and estovers. An owner of common land should be afforded the same rights as an owner of

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non-common land when entering into negotiations with anybody who wishes to acquire an easement over the land. I am concerned that we are suddenly creating a differential treatment in law between common and non-common land. It is very important that the Minister answers that question.
Lord McIntosh of Haringey: All that I can say is, "good try". Of course there is a difference. We recognise the difference in law between common and non-common land. We are considering whether the amendment that we table on Report should extend to other land on which driving is prohibited. Our proposals will certainly not assume that there is no difference in law between the two, because there is.
Baroness Carnegy of Lour: I have not had the benefit of receiving a copy of what the Government have sent to some noble Lords. That is inevitable, because the Government were not to know that I was interested, but I have been taking an interest in the issue for some time. Will the Government's proposals be retrospective? We would not be pleased if they were.
My other point is that I have received letters from Mr Michael Farrow, the freeholder of Newton Common in Hampshire, of which noble Lords will have heard, and also from the chief legal adviser of the Country Landowners' Association. I have received those two communications as well as one from the noble Lord. They both raise in considerable detail the question of the human rights, under the human rights convention, of the owners of common land, whether they be local authorities or private individuals. Are the Government paying attention to that in their proposals?
I am delighted that they are trying to solve that problem. That is excellent because people are being placed in an awful position. What has happened to householders is monstrous. However, the problem, as set out by the two lawyers to whom I have referred, is that it is not only house owners whose human rights are threatened but also the owners of common land. Obviously, if the House is to legislate intra vires, it must consider both.
9.15 p.m.
Lord McIntosh of Haringey: I have seen the document, to which the noble Baroness, Lady Carnegy, refers, from the lawyer to one of the owners of common land who is concerned with this matter. Perhaps I may assure her that we are fully aware of the issues relating to the European Convention on Human Rights and we shall have due regard to that. As to whether we are legislating retrospectively, we are talking about charges that will be levied in the future. The cut-off date for those charges is a matter for the detail of the amendment which we put forward.
Perhaps I may return to the point raised by the noble Earl, Lord Peel. He asked me whether it was right to differentiate common land from other land. As I believe I said, the difference is between land on which
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it is a criminal offence to drive and that on which it is not. There is some land—but only some—other than common land on which it is a criminal offence to drive.
Owners of common land are of course free to negotiate under the Government's proposals where they have not enjoyed access for over 20 years. That is at least in common with other land.
Baroness Sharp of Guildford: My name is attached to this amendment and I should like the opportunity to say a few words about it. I very much agree with what the noble Earl, Lord Selborne, said. He mentioned the problems with Surrey County Council. That council has changed its stance on this particular issue. Having originally granted easement at a peppercorn rent, it was then reminded by someone that it should be looking to secure best value for its assets. Since then, the council has sought to gain rather more for the right of easement.
There is also a very real problem that different jurisdictions within Surrey County Council have different policies. Guildford Borough Council and Waverley Borough Council have granted easements at a zero cost. Abinger Parish Council has a problem in that it owns the common land through a charitable trust, and it has been advised by the Charity Commission that it should do the same as Surrey County Council; namely, that, if possible, it should secure best value for its assets.
Therefore, a real problem exists in relation to differentiation between different authorities and the inequities that arise as a result. There is also the problem that has arisen with Newtown, where private landlords have discovered that they have rights for which they can secure some profit.
From these Benches, I thank the Government for the proposals that they have put forward. I believe that they are extremely constructive. Some problems arise as they stand in relation to the issue of those who have had, so to speak, long-standing rights of way. That can still create inequities. I believe that we should look at the proposals in more detail and return to the issue. However, for the moment, I thank the Minister for his proposals.
The Earl of Selborne: I am grateful to the Minister for his words of encouragement. I am sorry that getting in early did not totally curtail the debate. However, I am delighted about that because it demonstrated that there is a feeling on all sides of the Chamber that this matter needs to be addressed.
Although I have thanked the Minister, he will perhaps not be surprised to hear that I am not entirely persuaded that what he is recommending meets the sense of injustice which I believe the Committee feels. It comes back to the point to which my noble friend Lord Peel, I believe inadvertently, referred. He wanted to ensure equal treatment for owners of common and other land. That is exactly what I should dearly like to achieve. However, owners of common land are in the pound seats. They can never have prescriptive rights on their land unless those rights can be proved to go

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back to 1910; that is, 20 years before the introduction of the road traffic Acts. In other words, any landowner who, only by going back to 1910, can say that prescriptive rights can be established is in an extraordinarily privileged situation.
I am sure that it was not intended but the introduction of the road traffic Acts in 1930 meant that thereafter, you could not get prescriptive rights and if an owner did not bother to give an entitlement, as he should have done, or the householder did not identify who the owner was and could not do so, then for the rest of eternity, as the law stands at present, he can never have a right to access his own house. That is because at any moment, an owner might suddenly appear out of the woodwork, as has happened at Newton Common, and send in a bill.
I am certainly not happy about the charge of 4 per cent which people must pay. I know that the Minister suggested that that should be the upper limit but I believe that will be used as a guideline by the Lands Tribunal and others. Quite frankly, I believe that anyone who does not send in a bill for 70 years is remarkably lucky to obtain even a fraction of that sum. That is why I suggested that zero would be an appropriate figure for anyone whose house pre-dated 1930. Therefore, I shall certainly bring forward a different proposal on Report.
However, for the moment, I thank the Minister for his positive response and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 62 [Making of traffic regulation orders for purposes of conserving natural beauty, etc]:
Lord Whitty Lord Whitty moved Amendment No. 443:
Page 40, line 31, after third ("road,") insert ("a GLA road,").
The noble Lord said: My Lords, this is a technical amendment relating to Clause 62 which, among other things, introduces new powers for traffic authorities to make orders controlling vehicular traffic over minor byways for landscape and nature conservation purposes. Because there is no statutory definition of such byways, the Bill lists the types of highway to which the new powers will not apply; for example trunk roads and classified roads. However, the list is incomplete in that it does not presently include the major roads in London for which the Greater London Authority is now responsible. Amendment No. 443 would correct this omission by adding GLA roads to the list. I beg to move.
On Question, amendment agreed to.
Clause 62, as amended, agreed to.
[Amendment No. 443A not moved.]
Clause 63 [Prohibition on driving mechanically propelled vehicles elsewhere than on roads]:
[Amendment No. 44 had been withdrawn from the Marshalled List.]
Clause 63 agreed to.
Schedule 7 [Driving of mechanically propelled vehicles elsewhere than on roads]:
Baroness Byford Baroness Byford moved Amendment No. 444A:
Page 89, line 21, at end insert—
(" .—(1) Section 33 of that Act is amended as follows.
(2) In subsection (1), for "or bridleway" there is substituted ", bridleway or restricted byway".
(3) In subsection (4), for "or bridleway" there is substituted ", bridleway or restricted byway".
(4) After subsection (5) there is inserted—
"(6) In this section "restricted byway" has the same meaning as in Part II of the Countryside and Rights of Way Act 2000.".").
The noble Baroness said: On Monday, we were discussing the whole question of bridleways and restricted byways. We acknowledged that there are those who gain but there are also those who lose. I look across to the noble Lord, Lord Williams of Elvel, because his amendment follows and this amendment obviously has some bearing on it.
Some of the losers are likely to be those who enjoy watching or participating in motor vehicle trials, for example, in the countryside. This amendment would mean that those activities, if approved by the local authority, would be permissible. My understanding is that as the Bill is currently drafted, that would not be so. I seek clarification on this matter. It should be possible to seek authority to organise and arrange such motor trials. Unless the Bill is amended, it will no longer be possible to do so. I beg to move.
Lord Whitty: I think I understand the argument that the provisions of Section 33 of the Road Traffic Act should apply to restricted byways in the same way as they apply to footpaths and bridleways. But there are other provisions in the 1988 Act which it could be argued may also apply.
For that reason, we have the power in Clause 48 for the Secretary of State to make regulations applying or not applying provisions in legislation to restricted byways. We have made one or two exceptions by, for example, expressly applying Section 34 of the 1988 Act. However, generally we believe it to be more sensible to take decisions on which legislation should apply and which should not to the detailed regulations. The regulations will be subject to the affirmative procedure so that Parliament will have an opportunity to debate them.
Whatever the individual merits of the amendment, if we begin now to pick out further provisions to be applied, there is a risk of bouncing us into taking decisions on all the other provisions under these powers. It would be better, therefore, if we left discussion as to which provisions should apply until we come to the regulations rather than trying to resolve all those issues on the face of the Bill. I hope that the noble Baroness will not pursue her amendment.
Baroness Byford: I am grateful to the Minister. I think he will understand why there has been concern among those who wish to participate in authorised and

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approved trials as opposed to the ones which we are likely to debate shortly. I have listened to what the Minister said and am happy to leave the matter until a later stage when we consider regulations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 445:
Page 89, line 30, at end insert—
("(1A) For the purposes of this section a person shall only be deemed to have lawful authority if in carrying out the activity described in subsection (1) he has due regard to nature conservation.
(1B) For the purposes of subsection (1A) the Countryside Agency and the Countryside Council for Wales shall issue guidance about the nature conservation matters to which regard should be had.").
The noble Lord said: In moving Amendment No. 445, for the convenience of the Committee I shall speak also to Amendment No. 446. We come to the question of lawful authority and how that is to be defined. I take the point made by the noble Earl, Lord Peel, in a previous debate, that it is difficult to distinguish between owners of common land and owners of enclosed land. I believe that lawful authority, in this circumstance, is shared between owners of common land and owners of enclosed land.
As I stated recently, I can only speak to the situation in Wales. As regards common land, the National Assembly for Wales, in its informal interpretation of "lawful authority" states:
"The securing of all necessary consents, including the agreement of all parties with legal rights over the land. In the case of Common Land, this would include the agreements of the owner, any commoners, tenants, licensees or owners of any easements over the land".
The National Assembly for Wales does not define "legal authority" or "lawful authority" in the case of enclosed land. However, that probably follows from its informal interpretation.
I now learn, by hearsay, that in future, lawful authority will be defined by the National Assembly for Wales as "the consent of the owner" rather than, "the consent of the owner in the case of common land, plus graziers and others who have any rights".
It is certainly true that events—by "events" I mean motorcycle or four-by-four events—which go across or along rights of way under the Section 33 of the Road Traffic Act 1988 require the approval of the local authority in question. Events where vehicles will drive on common land or moorland beyond 15 yards of a public highway require the approval of a local authority. What is in question is whether the lawful authority is to be defined as simply the approval of the owner of the land or whether the local authority has any status in this discussion.
As a background to this I would say that in mid-Wales there is a serious problem in relation to events taking place in the uplands on what appear to be an unauthorised basis by motorcycles and four-by-fours—I am sure the Committee recognise that description. On Gilwern Hill, not far from my home, four-by-fours were given authorisation by the owner
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of the common to stage such an event. They did not cross a right of way and were perfectly entitled to do so. But they churned up the whole of Gilwern Hill and it will take around 30 years for that hill to return to its original state, if it ever does.
My amendment seeks to persuade the Government to define "lawful authority" in terms of nature conservation. I believe the purpose of the Bill is to promote nature conservation. I believe also that the common land in Wales, and I suspect in England as well, is a major and profitable habitat for wildlife. Nothing destroys such habitat more quickly than motorcycles and four-by-fours running across it. We have a common above my home in Wales which became the site for motorcycle trials. We no longer find curlews, lapwings and skylarks on that land. All ground nesting birds on that common have been destroyed by the vehicle movement across it.
I simply ask my noble friend to accept that anybody who has the right to grant permission for such events to take place should have regard to nature conservation. That must be part of the Government's intention in the Bill. In that regard, in my Amendment No. 445, new subsection 1(B) provides that the Countryside Agency and the Countryside Council for Wales will give advice on what nature conservation really means.
I understand that those events cannot be regulated by the police. But it is a problem when the police are not notified that they are to take place. Therefore Amendment No. 446 seeks to require the police to be informed if such an event is to take place. If that does not happen; if there is no serious restraint on "lawful authority"; and if the National Assembly of Wales simply says that the owners of the common or, as the noble Earl, Lord Peel, said, of enclosed land can, themselves, say that it will happen, then the Government are losing a trick. Nature conservation in the Welsh uplands, and I am sure on many commons in England, should be the imperative. I beg to move.
Earl Peel: I begin by saying that I have a great deal of sympathy for what the noble Lord, Lord Williams, says. But perhaps I can correct him on one point. When he described his problems in Wales he implied that land was clearly defined between common land as being open land and in-by land being enclosed land. But of course we must not lose sight of the fact that a lot of open land is also non-common land.
I sympathise with what the noble Lord says but we must remember that in some parts of the world—it applies in my part of the world—there are organised trials whose routes are carefully predetermined. The clubs involved in the trials are extremely sympathetic to all the requests made by the landowner. The local authorities usually know about them and no damage whatever is done. They do not occur often—perhaps once or twice a year—but they give an enormous amount of pleasure to the members of the clubs.
Lord Williams of Elvel: Do the events which take place in the noble Earl's part of the world and which are approved by authorities have regard to nature conservation and wildlife habitats?
Earl Peel: I can answer that question simply. Much of the Scott trial, which takes place in my part of the world, takes place on SSSIs. Therefore, English Nature would be the first organisation to come forward if it thought that any damage whatever was being done to the SSSI.
Lord Williams of Elvel: That is an SSSI which is protected. National parks are protected but what used to be called Radnorshire is not an SSSI or a national park. It is open country.
Earl Peel: I do not disagree with the noble Lord in any way. I have complete sympathy for his argument. I am merely putting another side of the argument because it is important that the Committee realises that the trials can take place in a sympathetic fashion provided that there is co-operation between the club, the owner, English Nature, the local authorities and the police. That is the only point I am making. The noble Lord makes a valid point. Something must be done to stop trials taking place indiscriminately and, like the noble Lord, I look forward to hearing the Minister's response.
Lord Hardy of Wath: I am grateful for my noble friend's initiative. I accept that reputable organisations conduct motorcycling trials which do not cause much bother but my experience of off-road vehicles is that they are devastating. I have received many letters and I am aware of an organisation, Gleam, which is deeply concerned about the situation. One of the right reverend Prelates has spoken to me about appalling damage caused on the Ridgeway as a result of off-road; they are destroying that enormously important environmental facility.
I took a great interest in the problem in my area of South Yorkshire. It is not unique because many communities have suffered enormous nuisance from these vehicles. Last year, I watched such vehicles riding over the nests of plover and skylark and for various reasons we have noted a diminution over the past 12 months. Young people ride on motorbikes, which I am told are sometimes stolen and certainly bought cheaply. The bikes are not necessarily in good condition, not licensed, not insured and the rider is unhelmeted. The damage caused to the young people is likely to be serious. The damage to wildlife and the natural environment, ripping up the ground and destroying it, can be appalling.
Earlier this year in a small community in South Yorkshire people were driven to a state of despair by off-road vehicles in attractive countryside. They went to their parish hall where there was standing room only while hundreds of people complained. That is not unique. A well known broadcaster, whom I have never met, wrote to me to describe his experience. After a period of hard work in the media he decided to visit the
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Peak District for some peace and quiet. He had been there one hour and was passed by four racing off-road vehicles and a succession of motorbikes. He then encountered a couple acting more naturally and found that although it was in broad daylight in a public place it was less offensive than the noise and discharge of the motor vehicles.
There is a problem as more and more of these vehicles are purchased. The people concerned see films on television which show cars careering around the countryside and believe that they can do it. When I remonstrated with a young motorcyclist, who believed that he could ride his motorcycle at the back of my house, he thought that he should be able to do so because he had nowhere else to go. I told him to pass his test and be a nuisance on the road. I also told him to get a helmet and insurance and have his vehicle inspected for roadworthiness before he rode it.
There is an assumption that if land is open anyone can do anything on it. The damage that has been done to British wildlife in the past few years cries out for attention. The Government must show by the time this legislation is enacted that they are responding to this problem; if not, they will not serve the necessary cause to which they have put their hand.
Lord Roberts of Conwy: I support the amendments of the noble Lord, Lord Williams of Elvel, not simply because he refers so endearingly to Wales but because what he says accords with one of my observations during Second Reading. I said that I had been astonished by the extent to which in the Bill the emphasis had been shifted from conservation, as it used to be, to access. We should all like to reconcile the two. However, I incline to the view of the noble Lord, Lord Williams, that in general access is at the expense of conservation, particularly in terms of bird life and so on.
I am mindful of the situation in Snowdonia. I shall not expand on the situation in that area. However, it is the fact that many birds and other species which were conserved in Snowdonia are now, and in future, very much threatened by the access provisions of the Bill. I endorse the effort in these amendments to re-emphasise conservation and ensure that that is a major consideration.
I understand the point made by my noble friend Lord Peel. These events can be organised in a way that is pleasing to those who participate in them and does no harm. It is important that such events should be properly organised and authorised and that the police are informed, as the second amendment of the noble Lord, Lord Williams, suggests. If there is to be access and such events are allowed—I do not see how they can be prevented—they should be properly authorised. I reassert, however, that conservation of wild species and so on must be the primary consideration.
Baroness Miller of Chilthorne Domer: I welcome the fact that the noble Lord highlights what is undoubtedly a problem in special areas of landscape. Very often they are hilly and bumpy areas in which it

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is fun to hold trials. One of the difficulties highlighted by the noble Lord—I look forward to hearing the response of the Minister—is how to identify who is responsible. As I understand it, if the owner has given permission the local authority must allow 28 days of such use per year unless there is a particular reason for granting a stop notice.
Lord Williams of Elvel: Perhaps I may add a gloss to the remarks of the noble Baroness. Certainly, in Wales—it is perhaps true also in England—if there is no crossing of rights of way the local authority has no locus to give approval or otherwise to these events.
9.45 p.m.
Baroness Miller of Chilthorne Domer: What I meant was that planning permission would not be needed if events occurred on fewer than 28 days a year. The noble Lord is right, there would be no authority. I agree with the spirit behind the amendment, but I would highlight that it is therefore incumbent on local authorities to provide somewhere where events can take place. It is usually young people who take part in the events and they enjoy this kind of activity. If provision can be made for this activity it will be worthwhile. I appreciate it is difficult. I spent some time on this issue with a trial-biking group.
Lord Williams of Elvel: I am sorry to interrupt the noble Baroness again. All land, as the noble Earl, Lord Peel, said, is owned. There is a landowner. Unless the local authority happens to be the landowner, it is not for the local authority to provide facilities for such events. All land being owned, it is up to the owner of the land t o decide whether or not he or she will provide such facilities. As the law presently stands, that is not a function of the local authority.
Baroness Miller of Chilthorne Domer: The noble Lord is right, there is not a duty on the local authority to provide somewhere for the events. But given the pressure for local authorities to provide facilities for young people—trial-biking is a sought after facility—they need to address that issue. Certainly where I live, it would not be good enough simply to ban it without providing any alternative whatever in the interests of nature conservation, which is worthwhile where there are sites which need protection.
Lord Glentoran: Members of the Committee on these Benches have a lot of sympathy with the amendment of the noble Lord, Lord Williams of Elvel.
I should like to reflect a little on comments made by my noble friend Lord Peel and by the noble Baroness, Lady Miller. I suggest that this boils down to the management of access and to the management of land.
All land is owned by someone, as we recently discovered when debating common land. There is room for some kind of an amendment here because when quads and motorbikes are not managed they are a serious nuisance and are liable to do serious damage to conservation areas and to wildlife. The noble Lord, Lord Williams of Elvel, in particular referred to these
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events which can take place on land which is neither right of way land nor access land. That makes the position even more difficult.
However, the noble Viscount, Lord Brookeborough—I shall take his name in vain, despite the fact that he is not in his place—has a wonderful wild estate in West Tyrone. As farming is worth a minus figure, he has moved into other ways of making money out of his property. He combines snipe and wildfowl shooting, walking and all that goes with that, with running corporate events for major companies. People come from England and all over to take part in them. He, by proper and skilful management and much work, runs these events over what in this country would be access land. He is able to protect his wildlife and ensure that year on year he has the kind of wildlife he wants for people to enjoy when walking and the kind he wants for sport, for people to shoot. Also he organises these events.
I agree strongly with the point made by the noble Baroness, Lady Miller. I was on the recreation committee for the Sports Council in Northern Ireland. In Northern Ireland we have enormous enthusiasm for motor sports. Noble Lords will be aware of the number of Formula One drivers and champions of one kind or another—whether motor bike riders or motor car drivers—that we have in Northern Ireland. That does not just happen. The local authorities have taken these sports seriously and have made areas available wherever possible—in disused quarries, at disused airfields and in all kinds of other places. They have used a good deal of imagination and have spent money. It is probably central government money, but they have found it. They have made available these areas, which are openly available. My plumber, who is a good friend of mine, is a leading go-kart driver. Some years ago he asked me to drive his go-kart. The track is on part of a disused airfield. It is properly managed and is open to all kinds of people. It is safe to drive go-karts there or many other things.
While I believe that the noble Lord, Lord Williams, has a real point—I have a great deal of sympathy with it—I hope that the Minister will have gleaned from around the Committee a fair amount of advice on the direction in which the Government might go on this very serious issue.
Lord Whitty: The noble Lord, Lord Glentoran, was being Delphic in his final point. This is a complex matter and it is not easy to see the balance of the way through. I recognise that there are some serious events which could be seen to threaten wildlife and certainly quality of life in the countryside as a result of landowners giving permission. We are not talking about people acting illegally; we are talking about where the landowner has given permission for events in the countryside which have detrimental effects on the environment and on the quality of life. On the other hand, the noble Lord, Lord Glentoran, and the noble Baroness, Lady Miller, are right that there is a demand—and not just in Northern Ireland but right across the country—for this kind of activity. In some cases, local authorities have met it.

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I take issue with the noble Lord, Lord Roberts. This is not about access. These are not the access provisions as described in Part I of the Bill. These are situations where the landowner has voluntarily given access to a group—unaffected by access provisions in the Bill or elsewhere. The problem is that that has perhaps endangered nature conservancy or has caused other damage.
My noble friend Lord Williams is trying to resolve the matter by extending the definition of "lawful authority". The National Assembly for Wales has indicated—by and large, we would agree with its view of current law, but with a qualification, to which I shall come in a few moments—that lawful authority by the landowner allows such events to take place, subject to other provisions. Others do not have a role in that. The position with common land is slightly more complicated because the landowner does not necessarily have to have any concurrence from commoners before agreeing to recreational use of this kind. But there are circumstances in which he may need to do so. The owner can use the land as he wishes as long as it does not unnecessarily interfere with the rights of the commoners, which may vary from common land to common land. There is a residual right for commoners there. But, in general, my noble friend is right. The landowner is the sole repository, or virtually the sole repository, of the lawful authority.
My noble friend's amendment seeks to introduce a requirement for the statutory agencies—the Countryside Agency and the Countryside Council for Wales—to provide guidance on nature conservancy and conservation issues and a requirement on those using the land to notify the local authority and the local police of their activities. It is not clear to me whether that amendment would also require the local authority and/or the police to give permission in those circumstances, but that is there in the background.
There is a difficulty here in that the proposal would then introduce a new set of provisions which would impose additional burdens on three different bodies. It would require the drivers themselves to give notification to the countryside bodies—and here I should point out that it would not involve the Countryside Agency because English Nature is the body with statutory responsibility for nature conservation—and to the local authorities and the police. The process would become extremely complex to cover a single event—in particular in the context of trying to decide what would constitute "lawful authority". It is not entirely clear to me that it would bring any significant benefits.
We also have to recognise that in relation to nature conservation, a great deal of the land about which my noble friend is concerned is already covered by regulations, at least to some extent. In cases where the area is protected by falling within an SSSI, notification will be required to allow English Nature to reach some kind of agreement with the landowner about the nature of the activities. I appreciate that my noble friend pointed out that much of the territory of mid-Wales is not of SSSI status and that could also apply
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elsewhere. However, I suggest that the majority of land on which a serious nature conservation issue would arise will most likely be SSSI land. Outside of those areas it is also open to local authorities to use by-laws to control access to land and to control events that can be held on it.
Furthermore, they may withdraw permission which has previously been granted for motorsports by using their powers to impose an Article 4 direction on the land concerned. Even if a site has no statutory nature conservation designation, and even if it is not covered by by-laws or Article 4 directions, the drivers or those organising the event will still have to comply with the relevant species protection legislation. This Bill of course strengthens such protection for rare species. Finally, on linear routes, traffic regulation orders may well also apply. My noble friend will see that there is already in place a great deal of legislation in this area.
Lord Williams of Elvel: On the question of species legislation, is my noble friend saying that anyone who organises a trial event on Gilwern Hill is obliged to abide by the species legislation? What does that mean?
Lord Whitty: As I understand it, it means that if wanton damage is caused to a species, the organisers will be liable under the offences created under the various different pieces of conservation legislation which will be enhanced by this Bill. I believe that what lies behind my noble friend's question is to query whether that will be known in advance. I believe that that is a valid question but one to which I regret that I do not have a direct answer. Nevertheless, I can tell my noble friend that this is not a totally unregulated activity. Even in those areas where no by-laws apply, there is no SSSI status and the local authority has not already taken action, some responsibilities continue to rest with the organisers and drivers involved in the event.
Clearly this is a difficult area and one on which concerns have been expressed. I suggest that there is an entirely separate issue whereby off-road driving takes place without lawful authority which is not addressed by these amendments. However, I think that my noble friend's requirement to redefine "lawful authority" effectively to require notification and de facto permission from the local authority and/or the police does not fully deal with the situation about which he is concerned.
Given the expressions of concern, I shall look at this again, but I do not think that my noble friend's amendment provides a wholly sensible solution. Clearly the landowner does have the right, subject to all the restrictions to which I have referred, to decide to whom he will give permission to use his land. Making that right in general subject to a form of local authority override would be extremely difficult. In addition, we need to take into account the points made by the noble Lord, Lord Glentoran, and the noble Baroness, Lady Miller; namely, that if a local authority was put in that position, it would probably have to find an alternative site, no doubt in Powys or mid-Wales. The problem would simply be transferred elsewhere.

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The amendment does not provide an adequate solution. I do not think that my noble friend or those who have spoken in support of his amendment have the right answer. Certainly the Government do not have a complete answer at the moment.
10 p.m.
Lord Hardy of Wath: Has my noble friend also considered that quite often vehicles are driven off the road in order to pursue criminal activity? The question of the theft of limestone pavement and other rocks was debated last week. People do not carry these in bags; they get a vehicle as near to the rocks as possible. Recent cases of the highly mobile criminal have attracted a great deal of attention—not merely thieves but people who engage in coursing, lamping, dog-fighting and so on in highly movable fixture venues.
Many of these activities take place off the road. While they are in breach of the law and do not have the owner's permission, there is no adequate regulation to discourage those activities. The police are sufficiently thin on the ground in rural areas for these people to have been getting away with it for a very long time.
Baroness O'Cathain: In view of the amendment of the noble Lord, Lord Williams, the Minister must realise that there is a serious problem in this regard. Will the Government come back with a solution at Report stage?
Lord Whitty: As regards the point made by my noble friend Lord Hardy, that is a separate issue. There are undoubtedly criminal activities—and probably a serious increase in such activities—involving off-road driving, but that is different from the situation where a landowner has given permission for an activity to take place.
This is a complex issue. While I should like to say yes to the noble Baroness, I cannot promise that we will come back with an adequate solution. The debate over the past 35 minutes has indicated that there is not an easy solution. No doubt we shall return to the issue on Report, but I cannot promise that the Government will have come up with a solution by then. Nevertheless, I hope that my noble friend will not pursue his amendment.
Lord Williams of Elvel: I am grateful to my noble friend for his slightly embarrassed response.
Lord Whitty: My noble friend could never embarrass me, as he knows.
Lord Williams of Elvel: The definition of "lawful authority" is not right; it is not consistent with what the Government are trying to do in the Bill in terms of nature conservation. My noble friend criticised my amendment—he said it was not the right solution—but I cannot think of any solution other than nature conservation. I thought we were in the business of nature conservation in this Bill.
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I hope that my noble friend will seriously consider my amendments and come forward, as the noble Baroness, Lady O'Cathain, suggested, with a government solution to this admittedly complex problem.
Earl Peel: I do not know whether it will help the Minister but on the question of nature conservation, I think I am right in saying that if the wildlife, the birds on the land in question, are Schedule 1 birds —I am sure that the noble Baroness, Lady Young of Old Scone, will be able to give a profound answer on this—English Nature can become involved. Am I not right?
Lord Williams of Elvel: It may be that English Nature can become involved, but the Countryside Council of Wales is a slightly different body.
It is up to the Government and my noble friend to bring forward an amendment on Report, as the noble Baroness, Lady O'Cathain, suggested. Nature conservation is the thrust of this Bill and the "lawful authority" in this case should be subject to nature conservation.
In the light of my remarks—I hope that my noble friend is not offended by what I have said and is taking it in the best of humour—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 446 not moved.]
Lord Glentoran Lord Glentoran moved Amendment No. 446A:
Page 89, line 34, at end insert ("and have no further highway rights").
The noble Lord said: In moving Amendment No. 446A, I shall speak also to Amendments Nos. 448 and 448A, in that order.
Amendment No. 448 refers to Schedule 7 and seeks to set a stiffer test for any evidence submitted to justify vehicular use of a footpath or bridleway. There is a real possibility that motorcyclists and four-by-four drivers will continue to ride with impunity on paths shown on definitive maps as bridleways or footpaths. Despite the attempt made to tackle this problem in paragraph 5 of Schedule 7—in subsection (2) of new Section 34 dealing with the prohibition of driving mechanically propelled vehicles elsewhere than on roads—the problem is that the new section does not stipulate the standard of proof required to defeat a prosecution requiring only prima facie evidence.
The danger is that defendants will continue to escape conviction by producing the most flimsy evidence to question the status of the right of way. For example, many members of the Trail Riders' Fellowship rely on hand-marked maps passed from one member to the next, with nothing attached to the map to indicate the origin of the evidence supporting the annotations. Would that be prima facie evidence? As most members of the TRF simply drive unquestioningly on the lanes marked on the maps, without being involved in gathering the original evidence, it is quite possible that they would seek to rely on such maps. Such a situation will not provide

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any deterrent to illegal vehicular use of rights of way. The amendment sets a standard of proof necessary to prevent a successful prosecution. The standard is that required for many defences in criminal prosecutions and provides clarity and certainty for all parties.
Amendment No. 448A offers a slightly stiffer provision. In prosecutions under Section 34 for driving vehicles on bridleways and footpaths the defendant may claim that vehicular rights actually exist. The showing of a way on a definitive map as a footpath or bridleway does not mean that greater highway rights do not exist. If the defendant can show that vehicular highway rights exist, he should be acquitted. Subsection (2) of the proposed new section does not make sufficiently clear that higher rights are taken not to exist unless demonstrated. It also requires only prima facie evidence that there are higher rights which may be capable of being disproved, rather than proof on the balance of probabilities that such vehicular rights exist.
The amendment imposes that balance, protecting defendants who were exercising vehicular rights, but prevents acquittal on the basis of vehicular rights which do not in fact exist. I beg to move.
Lord Williamson of Horton: I support the amendment. We had a partial discussion of this matter in relation to a previous amendment proposed by the noble Lord, Lord Williams of Elvel. The situation is a little different now because we have specific amendments which are directed at correcting the situation—and I am quite sure that it should be corrected. There is a slight risk that we are so busy improving the network of footpaths and bridleways—of which I am strongly in favour—that we forget that at least one of the important purposes is that citizens should have quiet and safe enjoyment of the network. That is what the amendment is about.
We have arrived at a curious situation. Driving a motor vehicle without lawful authority on a footpath or a bridleway is an offence under Section 34 of the Road Traffic Act, and footpaths and bridleways will be shown on the definitive map, but we know, because there is plenty of evidence, that some drivers of off-road vehicles or motorcycles simply ignore the situation. They have been taken to court but have not been found guilty because of the way in which the current legislation is drafted; namely, with its reference to nothing prejudicing the possible existence of other rights.
We are faced with a very difficult situation because it is perhaps impossible to secure a conviction under Section 34 of the Road Traffic Act. The consequence is quite simple. People who are trying to take advantage of this quiet and safe enjoyment of the footpaths or bridleways are subjected to the passage of off-road vehicles or motorcycles—illegally, in my view, but that is what is happening. If the rules and practice of this Chamber allowed me to play a recording of the noise of six motorcycles zooming down a bridleway with the distant sound of the whinny
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from a horse running in a different direction, I am sure that the support for this amendment would quickly double.
We are dealing with a serious point. People do not wish to walk on footpaths or use bridleways only to find that their enjoyment is badly damaged by the noise and disruption of vehicles that should not be there. The best solution is the most radical one; namely, to make the definitive map conclusive in the context of criminal proceedings. In that way, anyone claiming that the definitive map was wrong would have to invoke the modification order application procedure under the 1981 Act. That is quite difficult to do, and I should like it to remain so. That would be the best solution. If we do not go that far, we should at least go as far as the amendments in this group.
In one way or another, we must avoid the situation where the law does not correspond to what the ordinary citizen expects to find when he walks or rides on footpaths or bridleways. That is obviously what is happening now. It is not what one would expect to find in those circumstances. If we do not do something now, the problem will become worse. There will be more disturbance of walkers and riders in the future by motorised vehicles. I hope that we shall be able to correct the situation, which, in my view, has wrongly arisen because of the way in which the preceding Acts were both drafted and interpreted.
Lord Hardy of Wath: I hope that my noble friend the Minister was listening to that speech. We are in danger of making a real error in this respect. For example, one of my dogs is a middle-aged Norwich terrier, who is only so big. If I were to drop its lead and the terrier were free during an inappropriate time of the year, I would be committing a larger offence—or likely to be seen as committing such an offence—than someone tearing about on a 1,000 c.c. motorbike, a 2.5 litre or even a 4 litre four-by-four making a much greater adverse impact on the wildlife of the locality than would be the case with my little Norwich terrier. Therefore, when the Bill completes its passage, I hope that the Minister will ensure that such an anomalous situation does not exist.
Baroness Miller of Chilthorne Domer: We on these Benches believe that these amendments would be helpful in clarifying the situation. I look forward to hearing the Minister's reply.
Lord Whitty: We recognise the seriousness of the issue that the amendments attempt to address, even without hearing a recording of several motorbikes in action in the countryside, as proposed by the noble Lord, Lord Williamson. There is substantial concern about unlawful driving on footpaths, bridleways, and so on. There is also concern that Section 34 of the Road Traffic Act has been difficult to enforce. Indeed, as we know, there have been many failed prosecutions.
Schedule 7 to the Bill will replace Section 34 and will, among other things, place a burden on the defence to show why, where the way in question is shown on a definitive map as a footpath, bridleway or restricted

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byway, it should not be presumed to be such a way. Therefore, it is the defendant who will be required to produce prima facie evidence that vehicular rights exist.
The amendments seek to remove the reference to prima facie, although the evidence would be subject to cross-examination. The courts have much experience of applying evidential tests. Nevertheless we recognise that we may not have gone far enough in this respect. We are prepared to consider the principle behind the group of amendments. Earlier we undertook to consider the case for raising the test, at least to one of the balance of probabilities. However, the matter is not straightforward, but nothing is in this area. We also have to take into account the human rights dimension of potential defendants. Nothing is simple in this life. Nevertheless we recognise the substantive problem that has been raised. We undertake to try to bring forward a measure on Report which goes a significant way to meet the concerns expressed tonight.
10.15 p.m.
Lord Glentoran: I thank the Minister for giving that undertaking. I go further and say that I am absolutely delighted that he will reconsider the matter. I wish him and the department luck in coming forward with new propositions in this difficult area. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 447 to 448A not moved.]
[Amendment No. 449 had been withdrawn from the Marshalled List.]
Lord Whitty Lord Whitty moved Amendment No. 449A:
Page 90, line 12, leave out from ("byway"") to end of line 13 and insert ("means a way over which the public have restricted byway rights within the meaning of Part II of the Countryside and Rights of Way Act 2000, with or without a right to drive animals of any description along the way, but no other rights of way.").
On Question, amendment agreed to.
Schedule 7, as amended, agreed to.
Clause 64 [Erection of stiles, etc.: needs of persons with mobility problems]:
[Amendment No. 450 had been withdrawn from the Marshalled List.]
Lord Whitty Lord Whitty moved Amendment No. 450A:
Page 41, line 14, at end insert—
("(2) After that section there is inserted—
Agreements relating to improvements for benefit of persons with mobility problems.
147ZA.—(1) With respect to any relevant structure, a competent authority may enter into an agreement with the owner, lessee or occupier of the land on which the structure is situated which provides—

(a) for the carrying out by the owner, lessee or occupier of any qualifying works and the payment by the competent authority of the whole or any part of the costs incurred by him in carrying out those works, or

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(b) for the carrying out by the competent authority of ally qualifying works at their own expense or subject to the payment by the owner, lessee or occupier of the whole or any part of the costs incurred in carrying out those works.

(2) In this section—

(a) "competent authority" has the same meaning as in section 147 above,

(b) "relevant structure" means a stile, gate or other structure which—

(i) is authorised by a condition or limitation subject to which the public right of way over the footpath or bridleway was created, or

(ii) is authorised under section 147 above, but does not include a structure to which an agreement falling within section 146(5)(b) above relates, and

(c) "qualifying works", in relation to a relevant structure, means works for replacing or improving the structure which will result in a structure that is safer or more convenient for persons with mobility problems

(3) An agreement under this section may include such conditions as the competent authority think fit.
(4) Those conditions may in particular include conditions expressed to have enduring effect—

(a) for the maintenance of the structure as replaced or improved, and

(b) for enabling the public right of way to be exercised without undue inconvenience to the public.

(5) Where an agreement under this section has been entered into in relation to any structure—

(a) the public right of way is to be deemed to be subject to a condition that the structure as replaced or improved may be erected and maintained in accordance with the agreement so long as any conditions included by virtue of subsection (4) above are complied with.

(b) in a case falling within subsection (2)(b)(i) above, as from the effective date the previous condition or limitation relating to the relevant structure shall cease to have effect, and

(c) in a case falling within subsection (2)(b)(ii) above, as from the effective date the previous authorisation under section 147 above shall cease to have effect in relation to the relevant structure.

(6) In subsection (5) above "the effective date" means—

(a) the first anniversary of the day on which the agreement was entered into, or

(b) such earlier date as may be specified for the purposes of this subsection in the agreement.

(7) For the purposes of section 143 above, any stile, gate or other structure replaced or improved in pursuance of art agreement under this section is to be deemed to be erected under this section only if any conditions included by virtue of subsection (4) above are complied with.
(8) A competent authority may not enter into an agreement under this section except with the consent of every owner, lessee or occupier of the land on which the relevant structure is situated who is not a party to the agreement.
(9) The Secretary of State may issue guidance to competent authorities as to matters to be taken into account for the purposes of this section; and in exercising their powers under this section competent authorities shall have regard to any such guidance issued to them."
(3) In section 146 of the 1980 Act (duty to maintain stiles etc. on footpaths and bridleways) in subsection (5), before the word "or" at the end of paragraph (a) there is inserted—
"(aa) if any conditions for the maintenance of the structure imposed by virtue of subsection (4) of section 147ZA below are for the time being in force under that section,".").
The noble Lord said: Amendment No. 450A relates to Clause 64 and an issue raised by the noble Lord, Lord Addington, at an earlier stage concerning the requirement on local authorities to have regard to the needs of people with mobility problems when authorising the erection of stiles, gates and other stockproof barriers on footpaths and bridleways under Section 147 of the Highways Act 1980.
Section 147 is concerned solely with approvals for the erection of new structures. Amendments tabled in another place drew attention to the fact that there are many existing stiles which might usefully be altered, or replaced with different structures to improve access for disabled people. There is doubt at present whether local authorities have the power to contribute to the cost of making changes to stiles to help people with disabilities and indeed on the extent to which a landowner can replace such structures.
Amendment No. 450A would remove that doubt. It would enable authorities who presently have the power to authorise new stockproof structures to enter into agreements with owners, lessees or occupiers to alter or replace existing structures to make them safer or more convenient for people with mobility problems. The work could be undertaken by the land manager with all or part of the costs paid by the authority, or the authority could do the work or contract the work with the land manager meeting some or all of the costs. That would be a matter for agreement between the parties.
Agreements would replace the previous authorisation under which the stile or gate was erected. I should point out that the amendment replaces the version we tabled before the Recess. The only change is a provision to ensure that previous authorisations would not be automatically extinguished until time (up to 12 months) had been allowed for new works to be completed.
In implementing these new powers, authorities would be required to have regard to statutory guidance. Clause 64 already provides for such guidance to be issued.
The amendment also complements the provisions in Clause 56 which we discussed earlier which require local authorities to plan for the needs of disabled people when preparing their rights of way improvement plans. We believe that that will be a major aid in promoting increased access for people with mobility problems. I beg to move.
Lord Addington: I thank the Government for bringing forward this amendment. The problems of the disabled are not entirely covered by the amendment. Its emphasis is on gates and stiles. For someone with moderate mobility difficulties, the preparation of the surface area is equally important.
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There is little point in having an open gate if one has to go through a quagmire to reach it. I am glad to see this amendment and hope that it will deal with some of the problems we debated earlier.
Baroness Darcy de Knayth: I warmly welcome the amendment. On 23rd May a similar amendment was introduced in another place by David Heath. Mr Michael Meacher said at col. 836 of the Official Report that he would consider it carefully and that the Government might make proposals at a later stage of the Bill's passage. I am delighted that the Government have listened, considered and responded so speedily and positively, bringing forward the amendment at the earliest possible stage of the Bill's passage through this House.
I should declare that I am president of the disabled drivers countryside access group. Any accessing of the countryside by me in my wheelchair is purely notional to date. The group welcomes the amendment and believes that it would provide local authorities with useful powers.
The clause is enabling. There is no compulsion and no power to make improvements if the landowner objects. I do not think that there should be compulsion. That would be going too far. It would be welcome and helpful if the Minister could underline the Government's commitment—they have demonstrated it by bringing forward the amendment so speedily—to enabling people with mobility problems to get around and enjoy the countryside by stating on the record that the Government hope that local authorities and landowners will co-operate and go along with the spirit of the amendment. The provision is most welcome and will be a real improvement to what is already in the Bill.
Lord Whitty: I am perfectly prepared to respond to the noble Baroness's suggestion that we are committed to trying to ensure that the interests of people with mobility problems are addressed in the improvement plan; and we would hope that authorities and landowners could meet the spirit of that intention in their plans and activity.
The noble Lord, Lord Addington, referred to surfaces as well as structures. The degree of doubt which the amendment resolves relates to the powers of local authorities to address structures. There can be other forms of agreement with landowners which might also help to facilitate access. This amendment deals specifically with the powers relating to structures because there is an element of doubt there. We need to ensure that local authorities have that power. That is what I believe these amendments provide.
On Question, amendment agreed to.
Clause 64, as amended, agreed to.
Clause 65 agreed to.
Lord Whitty Lord Whitty moved Amendment No. 451:
After Clause 65, insert the following new clause—

INTERPRETATION OF PART II
(" .—(1) In this Part—

(a) "restricted byway" and "restricted byway rights" have the meaning given by section 44(4);

(b) expressions which are defined for the purposes of Part III of the 1981 Act by section 66(1) of that Act have the same meaning as in that Part.

(2) In this Part any reference to a highway includes a reference to part of a highway.").
On Question, amendment agreed to.
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 451A:
After Clause 65, insert the following new clause—

ENHANCING SUSTAINABLE DEVELOPMENT
(" . It shall be a principal aim of the Nature Conservancy Council in discharging its functions of protecting and enhancing biodiversity and physiographic features also to make such contribution to sustainable development as is required by guidance issued by Ministers from time to time.").
The noble Baroness said: The Committee will be pleased that the issues of conservation and protection of SSSIs will be considerably strengthened by the Bill; and that English Nature will continue to be the champion of those sites. The amendment seeks to establish the Government's thinking on the relationship between such championship, and the duties of English Nature.
The amendment would come into play when there was a conflict of interests. For example, as a result of the Government's policies on climate change, local communities might wish to devise local energy solutions. A community with a good river flowing through it might choose to sink a turbine into the bed of the river to produce a considerable amount of energy. However, if the river came within English Nature's area of responsibility, it might recommend against the scheme. The amendment would enable Ministers to issue guidance to clarify such debates. It would not lessen the authority of English Nature. The aim is to ascertain the Government's view on how strictly applied local policy advice from English Nature might fit in with wider national objectives. I beg to move.
Baroness Byford: We have reached Part III. As the noble Baroness, Lady Miller, has said, this is a probing amendment to establish the Government's line. I shall not delay the Committee at length. We have a number of important amendments coming up on protecting and enhancing diversity and looking to the future. I thank the noble Baroness for giving us an opportunity to speak on those issues.
Lord Whitty: Having at last reached Part III, we are directly addressing the nature conservancy and wildlife protection aspects of the Bill. Addressing issues of sustainable development is central to my department's strategy. The Liberal Democrats have tried to insert references to sustainable development in various Bills on the subject. Sometimes I have agreed
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with them and sometimes I have not. In most cases, they have argued that bodies that are primarily concerned with economic developments should take a longer-term, more sustainable and more environmentally oriented view.
Everyone has to pay attention to sustainable developments, but the conservation authorities have specific requirements relating to their conservation responsibilities, which could be diverted by writing in sustainable development on the same basis. English Nature and the Countryside Council for Wales are already under a duty to have regard to the needs of agriculture, forestry and the economic and social interests of rural areas when carrying out their statutory functions. They take those responsibilities seriously. English Nature has recently issued a position statement on sustainable development.
A sustainable development duty as outlined in the amendment may not be entirely appropriate, because the conservation agencies are under a duty to notify SSSIs based on a scientific assessment of whether the site is of special interest by virtue of its flora and fauna and its physiographical and geological features. Once it has decided that that is the case, the agency has a statutory duty to notify the land, but it must ensure that only the land that is of special interest: is so covered. Once the assessment has been made, other authorities are responsible for looking at the wider sustainable development arguments.
I accept the aim of the amendment, but writing such a duty in as equivalent to other requirements and duties of English Nature and the Countryside Council for Wales could blur matters unhelpfully. I hope that the noble Baroness will not pursue the amendment.
10.30 p.m.
Baroness Miller of Chilthorne Domer: I thank the Minister for his helpful reply. Although I understand that English Nature would in many ways be an advisory body in this area, if its advice was negative that would often be a body-blow to a particular scheme. However, given its statement on sustainable development, which I have read carefully, I believe that its heart is in the right place and I thank the Minister for his reassurance.
Baroness Young of Old Scone: While brandishing my copy of the Addison rules, I wonder whether I may add something which may help the Committee to understand the difficulty which has arisen in relation to this issue. The noble Baroness gave examples of where laudable sustainable green energy schemes might come into conflict with the nature conservation interest of a particular piece of land. I believe that English Nature's primary objective in this area is the conservation of biodiversity. That is very much a key test of sustainability. If biodiversity is going down the tubes, one can be fairly certain that, as a nation, we are not making decisions that are sustainable. Therefore, it is a valuable touchstone for whether the decisions that are being made in economic and social areas are indeed sustainable.

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I believe that conflict will arise in areas where sites are protected. The sites of special scientific interest in this country cover approximately only 7 per cent of the land surface. They are special for their nature conservation interest and I believe that it is not unreasonable for them to be seen as having conservation as their primary purpose. In many cases, economic activities are perfectly compatible with that. If a green energy scheme is not compatible with that, then I believe that we must look for schemes which do not impact on that very small proportion of land surface designated as special because they are genuinely the jewels in the crown for nature conservation.
As I continue to brandish my copy of the Addison rules, I hope that that explanation has been of value to the Committee.
Baroness Miller of Chilthorne Domer: I feel doubly reassured and look forward to returning to the debate, which may widen under Amendment No. 536AA to which I shall add my name. That amendment may extend the issue to cover marine areas. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 452:
Before Clause 66, insert the following new clause—
("The Nature Conservancy Council for England

THE NATURE CONSERVANCY COUNCIL FOR ENGLAND: CHANGE OF NAME
.—(1) The Nature Conservancy Council for England shall be known instead as English Nature.
(2) For any reference to the Nature Conservancy Council for England—

(a) in any provision of a local Act or subordinate legislation, or

(b) in any other instrument or document,

there is substituted, as respects any time after the commencement of subsection (1), a reference to English Nature.
(3) Any reference to English Nature in this Act (apart from this section), or in any instrument under this Act, shall be construed, in relation to any time before the commencement of subsection (1), as a reference to the Nature Conservancy Council for England.
(4) Schedule (Amendments consequential on change of name of Nature Conservancy Council for England) (which makes amendments consequential on subsection (1)) has effect.").
On Question, amendment agreed to.
Lord Renton of Mount Harry Lord Renton of Mount Harry moved Amendment No. 453:
Before Clause 66, insert the following new clause—

DUTY OF CERTAIN BODIES AND PERSONS TO HAVE REGARD TO CONSERVATION AND ENHANCEMENT OF AREAS OF OUTSTANDING NATURAL BEAUTY
(" . After section 87 of the National Parks and Access to the Countryside Act 1949 there is inserted—
"Duty of certain bodies and persons to have regard to conservation and enhancement of areas of outstanding natural beauty.
87A.—(1) In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, any relevant authority shall have regard to the need to conserve and enhance the natural beauty of that area.
(2) For the purposes of this section "relevant authority" means—

(a) any Minister of the Crown,

(b) any public body,

(c) any statutory undertaker, or

(d) any person holding public office.

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

(a) any local authority as defined in section 11A(6),

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

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

"public office" has the meaning given in section 11A(4)."").
The noble Lord said: In moving this amendment, perhaps I may remind the Committee of something that I said earlier. I am chairman of the Sussex Downs Conservation Board, the length of which from the east Hampshire/Sussex boundary to Eastbourne lies within an area of outstanding natural beauty. I am also on the executive committee of the Association of Areas of Outstanding Natural Beauty, an association which was formed fairly recently and of which every AONB in England and Wales is now a member.
It may be said that this is a modest, generalist amendment and, therefore, why table it at all? However, the fact is that the law as it currently stands designates land as areas of outstanding natural beauty but is then very unclear about the consequences. That is something that we shall tackle perhaps on Monday evening when we reach the various clauses at the end of this part of the Bill. Indeed, talking to this amendment this evening is rather, as the noble Lord, Lord McIntosh, said earlier in relation to Amendments Nos. 417ZA and 417B moved by my noble friend Lady Byford, awkward at the present time. But there it is. The Public Bill Office placed the amendment at this point in the Marshalled List and so I shall speak very briefly to it.
The purpose of the amendment is to make a rather greater reality of general AONB designation than exists at present. It is a preface to the much more detailed discussion which we shall have on later amendments on Monday evening which deal with AONBs and the setting up of statutory conservation boards.
The amendment seeks to ensure that "any relevant authority", including a wide range of public bodies,
"shall have regard to the need to conserve and enhance the natural beauty of that area",
for which it is responsible which is in an area of outstanding natural beauty.
It is a generalist amendment. Perhaps I may give the Committee an example of how it may work. At present, if the Secretary of State is making a decision about the route of the Okehampton bypass, because that lies in a national park he must have regard to the need to conserve and enhance the natural beauty and whether that affects the route of the bypass. Let us suppose that a comparable bypass were being built today around either Chichester or Arundel in West Sussex. Both lie in an AONB, but the Secretary of State would not have to have comparable regard to the need to conserve and enhance the natural beauty of the area.
The amendment merely seeks to bridge that gap. We are already assured by Ministers that in planning terms AONBs have, and will have, exactly the same degree of protection through PPGs as national parks. This is a more generalist approach but it is important in a general sense. It will give comfort to the noble Baroness, Lady Miller of Chilthorne Domer, who commented earlier that she was worried about there being, in a sense, two classes of AONBs—those which are in conservation board areas, if that is the will of the Committee next week, and those which are not. But my amendment applies to all AONBs, whether they are in a conservation board area, have joint advisory committees or whether the duties and responsibilities come directly under the local authority.
Therefore, on that basis, I recommend the amendment to the Committee and I hope that it will find favour. I beg to move.
Lord Renton: I gladly and warmly support the amendment moved by my noble friend. However, there is one consequence which we should bear in mind. I hope that I am not just being a stuffy old lawyer when I make this point. But it is a rule of statutory interpretation that if one particular matter is expressed, other matters which might have been expressed are assumed to be excluded. The Romans expressed it much more succinctly and better. They said: expressio unius est exclusio alterius.
It arises in this way. The proposed subsection (1) of the amendment refers to,
"the need to conserve and enhance the natural beauty of that area",
that is, in an area of outstanding natural beauty. But surely the public bodies mentioned in the proposed subsection (3) should endeavour to conserve and enhance the natural beauty of any area in the countryside. The areas of outstanding natural beauty are an extremely limited part of our countryside. I admit that they are special and should be carefully conserved, but there are many other parts which equally need to be conserved and their beauty enhanced.
Although we should accept my noble friend's amendment, I believe that on Report we should add a new clause to follow it which would have the effect of saying that all areas within the countryside should also be conserved and have their natural beauty enhanced by the public bodies concerned.
Lord Bridges: I support the amendment moved by the noble Lord, Lord Renton of Mount Harry. I believe that one of the main purposes of the Bill is to improve the planning, status and protection afforded to the areas of outstanding natural beauty.
Perhaps I may say to the noble Lord, Lord Renton, that this part of the Bill is specific to the AONBs. This is a desperately needed improvement to the AONBs. They lack a status of protection, which they need. The point he makes is a general one, but I do not think that it fits the purpose of this clause.
The noble Lord, Lord Whitty, will not be surprised to hear me speak in this way. In the past he has answered debates in which I have raised this question. It is perhaps pertinent to give an illustration of the kind of problem which arises. I live in the Suffolk Coasts and Heaths AONB. There was a proposal to build a commercial airport on the site of a redundant American airbase. We knew this to be outside the terms of the Government's policy planning guidance. However, the planning authority chose not to follow such guidance—designed to give a degree of protect ion to the AONB—on the grounds that they felt that the economic development which would come in its train would override the importance of the AONB.
The purpose of my Unstarred Question was to invite the noble Lord, Lord Whitty, to remind the planning authority—not personally but perhaps by a member of his department—of PPG7. The noble Lord did not answer the point in the debate. However, I discovered afterwards, which I long suspected, that it is the Government's intention not to interfere with the deliberations of the local authority unless they hear that it is minded to approve such an application. How that is discovered before the local authority makes up its mind I do not know. However, this whole situation will be avoided if the amendment tabled by the noble Lord, Lord Renton of Mount Harry, is included in the Bill. I hope that that will be possible.
Baroness Miller of Chilthorne Domer: From these Benches we welcome the amendment and look forward to the full debate we shall have on Monday. We believe that the amendment rectifies what was almost an accident in 1949 when AONBs were not given any status and national parks were.
We thank the noble Lord, Lord Renton of Mount Harry, for the amount of work which he did in bringing forward his private Bill. That has enabled this legislation to come before us in a state which perhaps it might not have been in without his previous hard work. We look forward to debating this issue more fully on Monday.
Lord Whitty: The whole subject of AONBs will be debated more fully on Monday. However, I can register now that the Government have sympathy with the amendment. It is right that in carrying out their functions public bodies should have regard to the purposes for which AONBs have been designated. I do not necessarily endorse everything said by the noble Lord, Lord Bridges. However, I believe that he is probably right as regards the fact that the Bill deals

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with AONBs, and therefore the issues raised by the noble Lord, Lord Renton, do not directly arise. However, we shall take advice on that before we come back on Report.
Although we have not included this provision so far in our amendments, we are prepared to consider its inclusion in the Bill and table an amendment on Report which will probably have the same effect as Amendment No. 453. It will probably be at the beginning of the AONB section of the Bill rather than here. I hope that with that explanation, the noble Lord, Lord Renton of Mount Harry, will accept that we shall return to the matter and will feel able to withdraw his amendment.
10.45 p.m.
Lord Renton of Mount Harry: I thank the noble Lord, Lord Whitty, for that support and for his assurance that he will come back with a government amendment on Report.
I noticed in passing that my amendment could not in fact stand exactly as it is. It refers to,
"After section 87 of the National Parks and Access to the Countryside Act".
But in an amendment at the end of the schedule, Section 87 of that Act is to be revoked. It is rather difficult therefore for an amendment to refer to a section in a previous Act which has disappeared. However, that is a technicality. Much more important is the Minister's comment that he will table an amendment on Report.
I thank the noble Lord, Lord Bridges, and others for their support, and to my eponymous noble friend Lord Renton, I have to say that I expect him to seek clarity in the law and to properly correct me if I have not achieved it. I only make the point that AONBs now cover 15 per cent of the countryside and that justifies this clause referring only to AONBs. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 66 [Sites of special scientific interest]:
Lord Whitty Lord Whitty moved Amendment No. 454:
Page 41, line 38, at end insert—
("( ) A notification under section 23 of the National Parks and Access to the Countryside Act 1949 (notification to local planning authorities of areas of special scientific interest) which by virtue of section 28(13) of the 1981 Act as originally enacted had effect as if given under section 28(1)(a) of that Act, shall cease to have effect.").
The noble Lord said: Amendments Nos. 454 and 462 clear up an historical "hang over". The National Parks and Access to the Countryside Act 1949 required the conservation agency to notify only the local planning authority if it considered that an area of land was of special interest. It was only with the advent of the 1981 Act that the conservation agency was obliged to serve this notification also on owners and occupiers of a site.
Almost all the sites originally notified in England and Wales under the 1949 Act have since been notified using the 1981 Act procedures, so that the owners and occupiers are aware that a site is special. There are now few sites identified only through a 1949 Act notification. The agencies will re-examine those and, where they are of special scientific interest, will notify them under the new legislation as soon as possible. There is therefore no need for notifications given under the 1949 Act to be retained and these amendments clarify the position. I beg to move.
On Question, amendment agreed to.
Baroness Byford Baroness Byford moved Amendment No. 455:
Page 42, line 5, leave out subsection (3).
The noble Baroness said: I rise to move an important amendment which deals with the removal of powers for English Nature and the CCW to purchase land compulsorily outside SSSIs. Subsection (3) provides powers to enable English Nature and CCW to purchase compulsorily any land which could be the subject of a management agreement under Section 15 of the Countryside Act 1968. That includes any land within an SSSI and, as a consequence of Clause 66(2), any "other" land. Subsection (2) extends the current provisions which allow agreements to be made on land "adjacent" to SSSIs to any "other" land where this is for the purpose of conserving features of an SSSI. I suggest that two issues arise out of this provision.
First, the powers in subsection (3) appear to duplicate those in Schedule 8, new Section 28L, in so far as they provide powers for compulsory purchase of all of an SSSI or any part of an SSSI. Moreover, the tests applied in the two cases differ in their detail. That is confusing. How will English Nature and CCW decide which power to use in considering the compulsory purchase of land in an SSSI? Perhaps the Minister could justify that apparent duplication of powers, assuming it is intentional; it may not be.
Secondly, the powers of subsection (3) appear to give English Nature and CCW the power to approach the owner of any land which is of no scientific interest in itself (otherwise it would be designated an SSSI in its own right), to seek agreement with him for the purposes of protecting an SSSI elsewhere and, if agreement cannot be secured, to purchase his land compulsorily. It is questionable whether those drastic powers are really necessary. For those reasons subsection (3) should be deleted. I beg to move.
Lord Whitty: Amendment No. 455 concerns the compulsory purchase of land, which is always a sensitive subject. I understand why the noble Baroness is questioning the circumstances in which such powers would be used. Let me emphasise that in considering the points the conservation agencies have in practice used their existing powers of compulsory purchase extremely rarely—once in the past 10 years in relation to England.

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We recognise the efforts of many land managers who are committed to conservation. But there are exceptional cases; for example, where the activities of an owner or occupier of land which is not an SSSI are affecting the special interest on an area which is of special interest. We have introduced provisions in Clause 66(2) which will enable the agency to offer a management agreement in order to encourage and support management of the land which will help conserve the special interest features on that land. But where the agency has offered an agreement but the agreement has been rejected or has been accepted and then breached, and where as a result damage to the special interest is continuing to occur, it is appropriate that we should empower the conservation agencies to tackle the problem.
However, compulsory purchase orders should not be made unless there is a compelling case in the public interest and any such order which is made, if there are objections, will need to be subject to confirmation by the Secretary of State or the National Assembly for Wales. There would, of course, be full compensation where land is acquired.
I re-emphasise that the CPO powers would be used only in exceptional circumstances where other avenues had failed. There is no intention of significantly increasing the area of land which the agencies own. An order would only follow extensive discussions with the owner or occupier of the land. Only if that process failed would the CPO come into effect.
If the agency does acquire the land compulsorily, it may take steps to conserve the special features. However, the provisions also enable the agency to dispose of the land provided that it can do so on terms which ensure that the special features of the site—in other words, the reason the land was acquired in the first place—are satisfactorily conserved. This flexible approach will ensure that the agency can find the best solution to the long-term conservation of the land.
The noble Baroness asked about the duplication of the powers. Clause 66 deals primarily with instances in which the agency seeks to acquire the land of a special site. However, Section 28 is different. It is a power which arises only when the agency is unable to serve the management of the land. I may have slightly misinterpreted that piece of advice but I have tried to distinguish between the two cases.
Amendment No. 456A relates to the Countryside Council for Wales and seeks to address what is seen as an anomaly. The council is defined in the Countryside Act as the "Countryside Council for Wales". This interpretation was inserted by the Section 130 and Schedule 8 of the Environmental Protection Act 1990. In the context of the 1968 Act, it is therefore appropriate that the provision should refer to "the council as respects land in Wales" in order to ensure that the drafting within that Act is consistent. That is the explanation for the slightly anomalous form of words and I do not believe that Amendment No. 456A is appropriate.
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I hope that with that explanation the noble Baroness will not pursue her amendment.
The Duke of Montrose: I speak not as a lawyer but as a landowner prior to devolution who experienced the 1981 Act. I own two nature reserves and three sites of special scientific interest. When I applied to do something on the outside of an SSSI I was told that the nature conservancy body would oppose it. There are compulsory purchase powers for SSSIs but the Minister is talking about an extension into areas outside them. I believed that that was already covered by any activity which might require planning permission. Presumably, the local authority would not go against the advice that it had been given. Is this merely an extension of powers to cover activities that would not require planning permission? What is the increase in power that is sought?
Lord Whitty: This activity would not necessarily require planning permission, but it would affect the sustainability of the SSSI. The activity might not formally require planning permission but would seriously affect the SSSI if it was allowed to continue and there was no agreement between the conservation agency and the landowner, or, if there was an agreement, there was a breach of it. That situation would arise in those circumstances. If the noble Duke requires any further information, I undertake to write to him.
Lord Bridges: What I say does not arise directly on this amendment but it is perhaps polite to inform those concerned that when the Committee comes to debate Schedule 8, which deals with the exploitation of a fishery inside an SSSI, I propose to raise my concern about the draconian powers in that part of the Bill.
Baroness Byford: I am grateful to both noble Lords for their contributions. The noble Lord, Lord Bridges, perhaps touches on a point that has been raised with us; namely, that English Nature and CCW are allowed to purchase land other than adjoining land. I need to read the response of the Minister. Perhaps we can have discussions before we return to the matter at Report stage. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Byford Baroness Byford moved Amendment No. 455A:
Page 42, line 17, leave out ("physiographical") and insert ("geomorphological").
The noble Baroness said: I speak to Amendment No. 455A very briefly. I am informed that the amendment proposes an improvement to the language used in the Bill. I shall try to pronounce the word concerned. All references to physiographical features are strictly incorrect and are becoming obsolete, according to the first edition of the Longman Dictionary of Geography (1985). My goodness! In modern geographical parlance physiography—I am sure that my pronunciation is not correct but it is very late—is known as geomorphology. I shall not struggle

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any further. This amendment is concerned with the correct technical terms. I hope that the Government will agree that there has been a mistake in the wording. I beg to move.
Lord Greaves: I appreciate the concern of the noble Baroness about geographical terms. However, I believe that she is wrong, and I shall explain why. I also do not understand these amendments. In the first four and sixth amendments the noble Baroness seeks to replace "physiographical" with "geomorphological" in a passage that includes "geological" and "physiographical". However, in Amendment No. 476A the noble Baroness wants to replace "geological" with "geomorphological" but leave in "physiographical". There is an inconsistency in the proposed amendments.
However, as I understand it, geology is the science of rocks. That word has also come to mean rock structures generally. Therefore, one can refer to conserving the geology of an area. I do not believe that "geomorphology" has that meaning. That word describes the science of surface land features as they are naturally formed. I believe that "physiography" is the correct technical term to describe land forms as opposed to the science of how they are formed. That is the correct term. The Government have it right. Geomorphology is the science of natural processes of landform formation. There may be physiographical features which need to be conserved which are not technically landforms; for example, there might be Anglo-Saxon strip lynchets in the terraces on the hillside, or there might be burial mounds or whatever. There would be physiographical features but not geomorphological features. I therefore support the Government on this dramatic and vital debate.
11 p.m.
Lord Whitty: I agree totally with the noble Lord, Lord Greaves.
Baroness Byford: I have more that I could read out, but perhaps the best thing I can do is write to the Minister. He can ponder upon my letter when it arrives. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 455B not moved.]
Lord Whitty Lord Whitty moved Amendment No. 456:
Page 42, line 32, leave out ("the Nature Conservancy Council for England") and insert ("English Nature").
On Question, amendment agreed to.
[Amendment No. 456A not moved.]
Clause 66, as amended, agreed to.
[Amendment No. 457 had been withdrawn from the Marshalled List.]
Lord Whitty Lord Whitty moved Amendment No. 457A:
Before Schedule 8, insert the following new schedule—

SCHEDULE AMENDMENTS CONSEQUENTIAL ON CHANGE OF NAME OF NATURE CONSERVANCY COUNCIL FOR ENGLAND
1. In each provision specified in relation to each of the Acts set out below, for "the Nature Conservancy Council for England" or, as the case may be, "Nature Conservancy Council for England" there is substituted "English Nature"—

(a) the National Parks and Access to the Countryside Act 1949: section 15A (meaning of "Nature Conservancy Council");

(b) the Sea Fisheries Regulation Act 1966: in section 5A (byelaws under section 5 for marine environmental purposes), subsection (3)(a);

(c) the Countryside Act 1968—

(i) in section 15 (areas of special scientific interest), subsection (6A), and

(ii) section 37 (protection for interests in countryside);

(d) the Conservation of Seals Act 1970: in section 10 (power to grant licences to kill or take seals), subsection (5);

(e) the Import of Live Fish (England and Wales) Act 1980: in section 1 (power to limit the import etc. of fish and fish eggs), subsection (2);

(f) the Highways Act 1980: in section 105B (procedure relating to environmental impact assessments), in subsection (8), paragraph (b) of the definition of "the consultation bodies";

(g) the Animal Health Act 1981: in section 21 (destruction of wild life on infection other than rabies), subsection (9);

(h) the Wildlife and Countryside Act 1981—

(i) in section 27 (interpretation of Part I), subsection (3A),

(ii) in section 27A (construction of references to Nature Conservancy Council), paragraph (a), and

(iii) in section 52 (interpretation of Part II), subsection (1);

(i) the Inheritance Tax Act 1984: Schedule 3 (bodies receiving gifts for national purposes etc.);

(j) the Agriculture Act 1986: in section 18 (designation and management of environmentally sensitive areas), subsection (2)(a);

(k) the Channel Tunnel Act 1987—

(i) in Schedule 2, Part II (regulation of scheduled works), paragraph 5(3), and

(ii) in Schedule 3 (planning permission), paragraph 17(4)(a);

(l) the Norfolk and Suffolk Broads Act 1988—

(i) in section 1 (the Broads Authority), subsection (3)(b),

(ii) in section 4 (conservation of areas of natural beauty), subsections (3)(a) and (5)(a),

(iii) in section 5 (notification of certain operations within the Broads), subsection (4), and

(iv) in Schedule 3 (functions of Broads Authority), paragraph 33(1)(c);

(m) the Electricity Act 1989: in Schedule 9 (preservation of amenities and fisheries), paragraph 2(2)(a);

(n) the Environmental Protection Act 1990—

(i) in section 36 (grant of waste management licences), subsection (7), and

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(ii) in section 128 (creation and constitution of the Nature Conservancy Council for England and the Countryside Council for Wales), subsections (1) and (2)(a);

(o) the Deer Act 1991: in section 8 (licences for exemptions from sections 2 to 4 of the Act), subsections (1) and (4);

(p) the Water Industry Act 1991—

(i) in section 4 (environmental duties with respect to sites of special interest), subsections (1) and (4),

(ii) in section 5 (codes of practice with respect to environmental and recreational duties), subsection (4)(b), and

(iii) in section 156 (restrictions on disposals of land), subsection (4)(c)(i);

(q) the Land Drainage Act 1991—

(i) in section 61C (duties with respect to sites of special scientific interest), subsections (1) and (4), and

(ii) in section 61E (codes of practice), subsection (4)(b);

(r) the Transport and Works Act 1992: in section 6 (applications for orders relating to railways, tramways, inland waterways, etc.), subsection (7)(e);

(s) the Protection of Badgers Act 1992: in section 10 (licences to do otherwise prohibited acts relating to badgers), subsection (4)(a);

(t) the Environment Act 1995—

(i) in section 8 (environmental duties with respect to sites of special interest), subsections (1) and (4),

(ii) in section 9 (codes of practice with respect to environmental and recreational duties), subsection (3)(b),

(iii) in section 66 (national park management plans), subsection (7)(a), and

(iv) in section 99 (consultation required before making or modifying certain subordinate legislation for England), subsection (2)(c);

(u) the Channel Tunnel Rail Link Act 1996—

(i) in Schedule 6 (planning conditions), paragraph 27(4), and

(ii) in Schedule 14 (overhead lines: consent), paragraph 7(4); and

(v) the Greater London Authority Act 1999: in section 352 (the Mayor's biodiversity action plan), subsection (3)(a).

2. In the following enactments, the entry for the Nature Conservancy Council for England is omitted, and in the appropriate place there is inserted "English Nature"—

(a) the Public Records Act 1958: in Schedule 1 (definition of public records), Part II of the Table in paragraph 3;

(b) the Superannuation Act 1965: in section 39 (meaning of "public office"), paragraph 7 of subsection (1); and

(c) the Parliamentary Commissioner Act 1967: Schedule 2 (departments etc. subject to investigation).

3. In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (which sets out offices the holders of which are disqualified from membership of the House of Commons), the entry for "Any member of the Nature Conservancy Council for England or the Countryside Council for Wales in receipt of remuneration" is omitted, and in the appropriate places there are inserted the following two entries—

"Any member of the Countryside Council for Wales in receipt of remuneration."

"Any member of English Nature in receipt of remuneration.".").

On Question, amendment agreed to.
Schedule 8 [Sites of special scientific interest]:
Lord Glentoran Lord Glentoran moved Amendment No. 457B:
Page 90, line 27, after ("opinion") insert ("as adduced by a person of recognised land management qualifications and expertise").
The noble Lord said: After the serious problem which my noble friend had with her amendment and the smart way in which the Minister quickly got out of it, let us move on to something concerning people.
In moving Amendment No. 457B, I wish to speak also to Amendment No. 458. It is the experience of some in the conservation field that those employed by the NCC as officers who undertake these assessment tasks, are not necessarily expert in the specific field. We feel that it would be more appropriate and probably cheaper for outside exerts to be used on an ad hoc basis. Furthermore, the initial assessment of a site for SSSI purposes or continuing monitoring should be by someone with specific expertise in flora, fauna, geology or geomorphology of that type exhibited in the SSSI. Following the previous discussion concerning these different sciences, the amendment seems very reasonable and sensible.
Amendment No. 458 seeks to amend new Section 28(3) enabling external scientific views to be sought by English Nature or the Countryside Council for Wales in considering confirmation. The amendment seeks assurances that English Nature or the Countryside Council for Wales will ensure that the best possible advice is available to them on issues or questions raised by owners and occupiers who object to notifications. While there is tremendous scientific expertise within the two organisations, English Nature and CCW, they do not pretend to have the monopoly of wisdom on all habitats or species. Questions about the scientific merits of notification may arise. Where English Nature or CCW consider that it would be helpful to seek advice from external experts—for example, academics or other natural reserve managers—they should do so. That will help to add credibility to the responses made by English Nature and the Countryside Council for Wales to owners and occupiers.
Three amendments are proposed in this group. They concern the removal of references to "enhancement" and "restoration". The basic aim of the amendments is to ensure that owners and occupiers of SSSIs can simply be required to conserve SSSIs, not to enhance or restore them. There is a concern that the Government are, by the back door, opening up the prospect that owners could be required to enhance or restore SSSIs at their own cost. That has never been part of the SSSI system before, which has simply required owners to conserve—that includes not to damage—SSSIs. Enhancement, where sought, has always been secured through management agreements, where the extra costs beyond conservation are covered by English Nature or the Countryside Council for Wales. It is stressed that the amendments would not in any way interfere with the provisions of Schedule 8 relating to restoration of SSSIs after they have suffered criminal damage.
Amendment No. 458A provides for English Nature and the Countryside Council for Wales to produce statements about management—
The Earl of Caithness: I thank my noble friend for giving way. I thought that we were dealing with Amendment No. 457B. My noble friend has now gone on to deal with Amendment No. 458A, which is the beginning of a different group.
Lord Glentoran: I apologise. I beg to move.
Baroness Nicol: It is my understanding that the Countryside Council for Wales and English Nature already have the power to go outside for advice when needed. I therefore wonder why this amendment has been tabled.
The Earl of Caithness: How nice to see the noble Baroness on her feet. The two of us have been discussing this issue for many years past. I fear that a good many of our arguments on Monday and today will be almost a replica of what we discussed in 1981. The crux of a sensible SSSI is the trust between the landowner and those affected by the SSSI and English Nature. If the system is to work properly, that trust is an integral and key part. But there is no reference in the new powers of English Nature to it consulting the owners and occupiers before making a decision. That is the whole point of Amendment No. 459.
In another place on 13th June the right honourable Mr Meacher said how important it is to consult the owners and occupiers and those whose economy depends on the land on which the site lies. Why is there not something in the Bill to that effect? Similarly, when it comes to Amendment No. 460, we have the position that English Nature is prosecutor, judge, jury and defence in its own cause. The landowner has no recourse to any other body and English Nature is not required to present the results of its consideration of any appeal. That is defying natural justice. It is just an open confirmation of the Government's dislike of owners and occupiers, which has become increasingly apparent as the Bill has been discussed.
Baroness Young of Old Scone: Perhaps I may seek clarification on the intention behind Amendment No. 457B, which refers to,
"a person of recognised land management qualifications and expertise".
Notification of SSSIs takes place on the basis of the special interest of the site in terms of its flora, faunaand—I hate to use the words—geological or physiographical features.
Having dealt with the "icals" I shall now turn to the "ists". It seems to me that a person of,
"recognised land management qualifications and expertise",
may not possess exactly the right skills needed to identify a site due to its flora, fauna, geological or physiographical features. I am sure that many land managers may have a passing interest in
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physiography, but I would not expect them to be experts. The skills required in that circumstance are those related to nature conservation, in particular ecological, biological and geological skills. As I have said, I am a little confused by Amendment No. 457B.
Lord Glentoran: Perhaps I may respond to the noble Baroness. My amendment states specifically that the responsibility should be taken on by someone with specific expertise in the flora, fauna, geology or geomorphology of the type exhibited in the SSSI. The whole purpose of the amendment is to ensure that the person making the assessment should be someone with the specific and particular expertise that is required for that site.
Baroness Young of Old Scone: My understanding of Amendment No. 457B is that it specifies,
"as adduced by a person of recognised land management qualifications and expertise".
That is why I am confused here. Most of the land management qualifications acquired these days would not necessarily require people to be experts in geology or to be conversant with the ecological and biological issues surrounding the flora and fauna.
Lord Glentoran: Perhaps I may help the noble Baroness. We are discussing here the selection of the person. What we are saying is that,
"a person of recognised land management qualifications and expertise",
would recognise that there would be a need to employ a specialist in the field.
Lord McIntosh of Haringey: I do not think that the amendment does that, but I shall return to that point later.
These amendments concern the notification of an SSSI, which includes a statement from the conservation agency of its view as to the management of the land. They seek to ensure that people are consulted, that expert views are taken and objections responded to. I hope that I have represented the amendments fairly. We support those sentiments, but I believe that I can demonstrate that they do not need to be enshrined in law.
I shall turn first to Amendment No. 457B. The notification of an SSSI takes account of selection criteria published by the Joint Nature Conservation Committee. The justification for notification turns on a scientific judgment about the special features of a site. The agency is under a duty to notify the land if it considers that it is special by reason of the features on that land. The staff of English Nature are well qualified to make an assessment of whether a site is of special interest and I see no reason to restrict the qualification as suggested by the amendment which, as my noble friend Lady Young pointed out, refers only to,
"as adduced by a person of recognised land management qualifications and expertise".
Requiring the decision to be taken by someone who is an expert in land management would overlook the need to involve ecologists, geologists, biologists and

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other specialists. There is nothing wrong with land management expertise, but it covers only one aspect of a range of specialties.
Amendment No. 458 is unnecessary because it is always open to the agency to take advice from another party if the relevant scientific expertise or experience is not available within the agency. That point was made entirely clear by my noble friend Lady Nicol.
As regards Amendment No. 459, it may not be appropriate in every case for discussions to be undertaken prior to notification of the land—for example, there may be a specific and imminent threat to the site and immediate notification may be essential. It would be quite inappropriate to introduce procedures which would allow damage to take place before a site could be notified. Noble Lords may recall a similar loophole in relation to the provisions originally included in the 1981 Act. Because of that loophole, it was necessary to produce an amending provision in 1985. Of course, in most cases where there is no specific and imminent threat, the agency will have entered into what it terms "pre-notification discussions" with owners and occupiers before the notification is served. They will then have had an opportunity to provide early views.
Subject to this, however, the views set out in the notification will be the views of the conservation agency, reached with the benefit of a wealth of experience and expertise, not only as advised by its staff but as considered by the members of its council. The views presented to the council will be drawn together by agency staff experienced in conservation management, but they will also be able to seek specialist advice where particularly difficult or technical issues arise, and will encourage them to do so wherever this is necessary.
Finally, turning Amendment No. 460, the notification of an SSSI includes an opportunity for representations to be made on any part of the package, including the statement of views on the management of the land. That is in Clause 28(3). The conservation agency is statutorily required to consider those views. Where it takes a decision after considering the views of owners and occupiers of land directly affected, it would be expected to give reasons for its decision, clearly demonstrating that the decision is proportionate and defensible. We would expect the agencies to follow this example and to explain to owners and occupiers, where this is the case, the reasons that it feels unable to amend or withdraw the notification. I hate to suggest it in the current climate of the law, but if they did not do so there is always the risk of judicial review.
11.15 p.m.
Earl Peel: Before the noble Lord sits down, perhaps I may take him back, very briefly, to Amendment No. 459. This is a very important amendment. As my noble friend Lord Caithness said, the relationship between the owners and the occupiers and the conservation agencies is very important and very special. It is a relationship that has been built up over the years and has, on the whole, worked extremely well.
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I should be quite concerned if most land managers did not have the opportunity of being involved in a management statement that was being drawn up on their land. The noble Lord, Lord McIntosh, made the point—it is a valid one—that in special cases that would not be appropriate. Will the Minister consider coming back with an amendment on Report which would divide those two circumstances? Such an amendment would provide confirmation that, where possible, the land manager would be involved, and would differentiate between that situation and the situation where it was inappropriate for him to be involved because the conservation agency had to act as a matter of emergency.
Baroness Young of Old Scone: Perhaps I can help the noble Lord on a point of current procedure. It is true that in the majority of cases English Nature does consult at the pre-notification stage. It is only on the very rare occasion when there is a real threat to a site that that does not happen. But the whole process is amply surrounded by consultative processes and opportunities for landowners to comment. So even on the very rare occasion when a notification is made without consultation with the land- owner in difficult circumstances where there might be damage to a site, there is an opportunity for the landowner to comment at a stage after the notification has been served and before the confirmation is made. It is not that land owners have been locked out of this process; it is simply a matter of timing and when they are brought into the consultation.
The Earl of Caithness: If that is common practice and common courtesy at the moment, why can it not be on the face of the Bill? That would be incredibly reassuring to owners and occupiers of land.
The noble Lord, Lord McIntosh of Haringey, is overlooking the question of trust. It is all very well to say that there are lots of experts at English Nature—there might be. Equally, the landowner might have experts who take a totally contrary view. It would be quite wrong for this Bill to proceed and become an Act without there being a requirement on the face of the Bill for English Nature—except in exceptional circumstances—to consult the owners and occupiers of land.
Lord McIntosh of Haringey: These provisions have been in existence for almost 20 years. When they were originally written in the form that the amendment would provide—in other words, that there had to be consultation before notification—that did not work, and they had to be rewritten in 1985. If anyone can write to us citing specific examples where trust has broken down between a landowner and English Nature because of a lack of consultation in advance, we shall reconsider the matter. But I do not believe that that is the case. I believe, as I said originally and as the noble Baroness, Lady Young, confirmed, that in the vast majority of cases the agency does enter into pre-notification discussions. I am not aware of any difficulties. The amendment is unacceptable because it

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would re-open a loophole which had to be closed 15 years ago. I am not prepared to do anything at present other than to say that, if any difficulty were to be identified in correspondence—we are not aware of any—we should be prepared to cover it in guidance to the agency.
The Earl of Caithness: The noble Lord has answered the point with regard to the amendment. He has not answered my point about the possibility of refining the amendment so that a requirement for consultation, save in exceptional circumstances, is written on the face of the Bill. That is different from the 1981 Act, and it is a step forward. It takes us up to the position as it was remedied in the 1985 Act.
Lord McIntosh of Haringey: First, that would be an invitation to have recourse to the courts, as only the courts can decide what are "exceptional circumstances". Secondly, show me that it is necessary. No one is showing me that there is a problem and that such a provision is necessary.
Lord Glentoran: This has been a somewhat disjointed discussion. I do not think that I was out of order at the beginning, with all due respect to my noble friend Lord Caithness. On this side of the Committee we are not totally happy with the explanations. However, the two key points have been well made. At this stage, we shall read Hansard and re-think the matter. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 457C to 458ZA not moved.]
The Earl of Caithness The Earl of Caithness moved Amendment No. 458A:
Page 91, line 1, leave out ("and enhancement").
The noble Earl said: Again, there has been a total "mess up" in the groupings. This amendment is grouped with Amendment No. 457B. It is also the start of the next group, with a totally different subject. I should like to move this amendment, to which my noble friend Lord Glentoran started to speak! I hope that my noble friend will talk again on this important subject.
We have here another example of the Government trying to change the law—this time rather surreptitiously—and weight the current situation more against the landlord and the occupier of land. Let us be clear about this. It is a deliberate rather than surreptitious attempt by the Government to impose further burdens on landowners and occupiers of land when it comes to SSSIs.
Under the current law there is no requirement for a landlord to enhance an SSSI. If there were, it would be clearly stated on the face of the Bill. This is a slightly duplicitous way of ensuring that this extra requirement on a landlord is on the face of the Bill.
Should the provision go through into law, it is clear what would happen. English Nature would think that an SSSI needed to be enhanced; it would say so in a management agreement; and the landlord would be forced to meet the extra costs involved. Who would decide what was right in terms of an SSSI being enhanced or restored? What discussion would take place? The matter is fraught with difficulties and should be re-examined. It is an area where a lot of trust that has developed in the past and been built up could quite easily be shattered by an arrogant attitude on the part of one of the conservation authorities. I beg to move.
Baroness Byford: The reason that this difficulty has arisen is due to the fact that Amendment No. 458A appeared grouped with the previous set of amendments. That was an error. That is why my noble friend was mentioned in that respect. In other words, the amendment appears twice on the groupings list in that it is also grouped with Amendments Nos. 457B, 458, 459 and 460. As I said, that is a mistake and the amendment should only be listed in this group, containing Amendments 486A and 487B. I hope that that clarifies the situation.
The amendments tabled in my name and that of my noble friend deal with the question of enhancement. It is not a case of our being against enhancement but, if landowners are required to enhance their land, there must be requisite cash payments to go with it. It is not unreasonable to expect a land manager to conserve the features of an SSSI, but to ask him to enhance the land without a financial agreement is too much. Therefore, I support my noble friend's very good introduction to Amendment No. 458A.
I turn now to the remaining two amendments in this group. Amendment No. 486A deals with the removal of the provision for a management scheme set out in provisions for restoring SSSIs. Although it is reasonable for management schemes to set out the management required for conserving the features of an SSSI, it is not reasonable to require management to restore SSSIs. However, if it is, the Government need to indicate to the Committee at what stage that restoration should start. It would seem illogical to ask a landowner, for example, to restore a site to perhaps 1949 conditions, or whatever. But if we are talking about much more up-to-date times, this is perhaps acceptable.
There is a practical objection here. There is nothing in the Bill to state where any bench-mark would lie for assessing what "restoration" might be required. For example, should the site be restored to its condition on notification—which is one matter—or to its condition at any other time, assuming that there is some reliable information available on its connection with either date? Alternatively, is the restoration to be carried out to the state to which English Nature—
Baroness Miller of Chilthorne Domer: To enable me to understand fully what she is explaining, I wonder whether the noble Baroness could include in her remarks how this fits in with her earlier amendment

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that related to the Secretary of State requiring any person to enhance or restore any site where that appeared necessary.
Baroness Byford: I am afraid that, at the end of the day, this takes us back to the question of money. I do not have that amendment to hand at the moment, but I believe that the noble Baroness is talking about the biodiversity group of amendments.
Clearly the argument that both my noble friend and I are advancing is that to expect people to restore or enhance their land without giving any financial support is asking more than should be expected of landowners. Therefore, I do not have a difficulty with either of those issues because they both come back to the question of money in support of these schemes. That is what I am trying to convey. I must apologise to the noble Baroness. It is getting late, and I am probably not quite as clear in my delivery as I was when we started today.
We are talking about the requirement that an owner should be asked to improve or restore the land to a level at which it was not originally and, in fact, to enhance it. Unless some financial support is forthcoming, we believe that is an unreasonable imposition on land managers. As I say, it is not clear what bench-mark is established with regard to the conditions under which an SSSI should be restored. It is surely reasonable to be told those conditions prior to notification.
Previous amendments have argued that management schemes should not provide for SSSIs to be restored but simply conserved. To require private owners to restore SSSIs—even provided that a reasonable bench-mark condition for restoration could be established—would amount to an undue, inequitable and unjustifiable burden on owners and occupiers. As I said clearly initially, we are not against the measure but it should not impose an extra financial burden on landowners.
11.30 p.m.
Lord Rotherwick: As a land manager and owner of an SSSI I have had some interesting discussions with English Nature. I enjoy participating in those discussions. English Nature suggested that we restore the SSSI to the condition it was nearly 100 years ago. The area is an ancient forest. Over a century ago cattle would have grazed underneath the trees. However, an Act of Parliament was passed to stop that activity because of the damage that resulted to the SSSI. That seems to us justification for not returning the site to its former state.
I refer to the position of the landowner or land manager vis-à-vis English Nature. In the case I am discussing I believe that the landowner or land manager should not have to restore the site. The landowner has the quiet enjoyment of the land. If English Nature had insisted that we restored the site to its state of 100 years ago, we would not have that quiet enjoyment of the land. I believe that it is not just a matter of ensuring that English Nature provides
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funding for any restoration of SSSIs but also that English Nature should compensate the landowner for loss of enjoyment of the land.
I do not wish to cause controversy here as I have a good relationship with English Nature. However, it would be a sad day if more draconian management measures were imposed on landowners and many of them lost the incentive to care for the land as the majority of them do.
Earl Peel: I refer to Amendment No. 458A and the whole question of enhancement of land. I take a slightly different line from that of some of my noble friends. I welcome the opportunity to enhance SSSIs. That is a laudable objective. I go so far as to say that many of the biodiversity action plan proposals would not be achievable if we did not enhance sites of special scientific interest.
However, my noble friend Lady Byford is absolutely right to say that at the end of the day we return to the matter of finance. I cannot believe for one moment that the Government intend to invite owners of SSSIs to enhance their land without proper compensation being provided. Such compensation is only fair and just. My knowledge of the Bill is not sufficient for me to give a definitive answer. I cannot believe that that will be so. I welcome the opportunities for enhancing SSSIs wherever possible.
Amendment No. 487B relates to restoration. I believe that restoration is perfectly reasonable and right for any conservation agency to demand if wilful damage can be shown. But as noble Lords have said, we have to be extremely careful. Traditional operations on these sites could create damage without the owner realising it. It comes back to the question of sensitivity and the relationships between the conservation agencies and the owners. From my experience of English Nature I cannot believe that such a situation is likely to arise.
The Bill is unclear on how restoration will be dealt with. The issue has to be dealt with delicately. I seek confirmation from the Minister that if traditional land uses were responsible for degradation of a site, clearly the countryside agencies would deal with it with the necessary tact and care.
Baroness Young of Old Scone: Perhaps I may outline some of the good relationships between English Nature and landowners on restoration of land. That 40 per cent of our SSSIs are in unfavourable condition and show no signs of improving is a dreadful statistic. It would almost rip out the heart of the Bill if it did not address that appalling statistic.
In many cases at present landowners voluntarily enter into agreements with English Nature for restoration processes. English Nature is delighted to be able to help with funding where appropriate. I do not believe that the position would be significantly different in the future. The question of restoration is fundamental to the Bill. It involves discussion with landowners and agreements about the management required. The financial guidelines and guidance will set

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out in detail how such agreements should be reached, what will happen if agreements cannot be reached, how sums of money will be agreed and what will happen if they cannot be agreed. There is a clear and formal process, with people able to resolve difficulties about management action over restoration and the recognition that if heroic action is required it is essential that financial help is given.
Earl Peel: The noble Baroness said that 40 per cent of SSSIs were being damaged. I am sure she will acknowledge that the root cause of that damage is the somewhat unsatisfactory common agricultural policy.
Baroness Young of Old Scone: The noble Earl is correct that many of the reasons underlying the unsatisfactory condition of SSSIs relate to the common agricultural policy. I can give a list of about 20 other policies which are wreaking their worst.
Let us not use the word "damage" because in many cases SSSIs are not damaged. They are in unfavourable condition as a result of lack of appropriate management. In many cases management schemes may not be appropriate. The current informal arrangements with landowners through management agreements and wildlife enhancement schemes may be the most appropriate way forward. The more stringent requirements of management schemes and management notices are intended to be used where there is some difficulty about reaching agreement with landowners.
The noble Baroness, Lady Byford, raised the issue of a baseline with regard to restoration. An SSSI is notified for its special interest features. If those features are in an unfavourable condition at the time of notification, a commitment is made to get them into a favourable conservation condition. There will be no carte blanche. We will not be trying to get land back to the condition that it was in in, say, 1930 or 1825. Nobody is trying to recreate Constable landscapes or Hardy country. The provisions relate clearly to the condition of the specific features for which the area has been designated. The objective is strictly defined and restricted.
Baroness Miller of Chilthorne Domer: We would not be happy for the amendments to be carried. The statutory underpinning of the biodiversity action plan, which features in a later amendment tabled by the noble Baroness, Lady Byford, would become unaffordable if money was to be the bottom line in the enhancement and restoration of sites. These amendments contradict the aims of that statutory underpinning, which does not seem to have the financial bottom line that the noble Baroness has just implied that these amendments have. If that is the underlying idea, any statutory underpinning of biodiversity would be unaffordable and almost impossible to achieve.
Lord Whitty: I am amazed at the debate. The idea that we should not have a reference to enhancement
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when 40 per cent of SSSIs are in a deteriorating condition is amazing. Those who purport to represent those with an interest in SSSIs are being paranoid about the implications.
Lord Rotherwick: I hope that the Minister does not misunderstand us. Most of us commit a large percentage of our income to the enhancement, restoration and maintenance of our landscape. However, more than 22,000 people in the agricultural sector will lose their job this year, on top of more than 20,000 who lost their job last year. We are inhibited from doing all that we want to do by lack of funding. Most of us are already involved in schemes such as countryside stewardship and do our utmost to enhance the land. We are behind the idea, but we are frightened of being forced into something that we cannot control or finance.
Lord Whitty: This is pushing the situation. I get irritated by this and at this stage of the night I am entitled to express my irritation. Some people engaging in the debate have a direct financial interest in these matters. They are taking the opportunity to exaggerate the implications of what is only a notification procedure. It is a ludicrous exaggeration to say that it will cause unemployment in the agricultural sector.
The provisions are about notification. That must include the need for enhancement and restoration. It does not of itself impose any additional liability on the occupiers or owners. That is covered in the management scheme, as my noble friend Lady Young of Old Scone has said. The payments under any management agreement will identify the necessary actions. There are financial guidelines for that. They will include the costs arising to the land manager from the operations that are required under the agreement. The idea that landowners are threatened with huge new costs when we are only asking for SSSIs to be maintained in a reasonable condition and kept in the condition agreed when they were first identified as SSSIs is a distortion of the situation.
It is hoped that amicable agreements can be reached between the conservation agencies and the landowners. However, I do not believe that the situation is helped by spreading despondency among landowners by suggesting that that will impose a huge new cost on them. That is not the case. It is not the case under the current procedure and it will not be the case under this Bill. However, on the other hand, landowners have a clear responsibility to co-operate and reach agreements with English Nature and the Countryside Council for Wales.
I apologise for being slightly irate at this point. I believe that the debate has been distorted. Although the noble Baroness moved her amendment in a reasonable manner, I believe that part of the motivation behind her being requested to table it was not reasonable.
11.45 p.m.
Earl Peel: Perhaps I may try to put the noble Lord's mind at rest. I do not believe that there was anything behind this matter other than to try to establish whether enhancement—a word which has considerable ramifications—would be dealt with in a fair and equitable way. The noble Lord went on about landowners. However, let us also remember that many small farmers will be affected by this legislation. When they hear about English Nature being involved in enhancement schemes, they are bound to become concerned.
I listened carefully to what the Minister said and I am extremely grateful for the confirmation that he gave us.
Baroness Young of Old Scone: Perhaps the noble Earl will take heed of the encouraging discussions that we are having at present with a number of small farmers, particularly in the uplands. When they are poised on the brink of financial unviability as a result of the extremely serious situation in agriculture in the uplands, quite often the sight of English Nature coming over the horizon with a cheque in its hand is what keeps them from the wall. They are delighted to see us. It is in the spirit of the future of agriculture that farmers are diversifying into a whole variety of functions. Small farmers in particular are earning a living from a range of sources, some of which are in agricultural production but many of which are involved in the enhancement of conservation of the landscape for the future.
Earl Peel: I fully acknowledge what the noble Baroness says. Hill farmers have been kept going not only by schemes with which English Nature is involved but by various conservation schemes. The noble Baroness is absolutely right. However, the simple point that I wanted to make was that we are moving away from conserving to conserving and enhancing. That is a worrying concept, and I wanted to obtain confirmation from the Minister that no financial implications were involved. He explained the situation extremely well and I am most grateful to him. I am sure that we will be assured by what he said.
Baroness Byford: I thank the Minister. Unfortunately there was some confusion and this matter got off to a rather bad start. Upon reflection, the Minister may feel that he was mistaken in suggesting that my noble friends had not declared an interest. They said quite clearly that they have an interest. When the Minister looks at Hansard tomorrow, he will see that they referred to that. I believe that that is where the confusion lies. I declare that I have—
Lord Rotherwick: I have stated on a number of occasions that I am a land manager and owner. I want to add that this issue does not benefit us financially in any way. Where funds are received to help us in our management, they only help to subsidise what in many ways we are already doing.
Lord McIntosh of Haringey: I remind Members of the Committee that the Companion states that where there is an interest which is direct, pecuniary and shared by few others, noble Lords should exercise extreme caution in the contributions that they make to debate.
Baroness Byford: I thank the Minister for clarifying that. If it was not quite as correct as it should have been, I can only apologise. Certainly, speaking from the Dispatch Box I can say that we have land; none of it is SSSI land. There is no way I can benefit from it. I sometimes wish that we had SSSI land. We are riot so lucky.
All Members of the Committee will be extremely grateful for the contribution made by the noble Baroness, Lady Young of Old Scone. There has been understandable concern—and she will understand it because she deals with it all the time—on the part of those who manage land. They believe that the Bill asks extra of them. Earlier, the noble Baroness, Lady Miller, said that she found my position extraordinary, although she may not have used that word. I wish to set out how these things will be possible, whether in relation to this set of amendments or the very important amendments to be discussed on Monday.
At the end of the day, this will not all happen out of thin air. Those matters have to be financed. Therefore, I wanted to clarify the present position in relation to what English Nature and other organisations are expecting of those people who have SSSIs within their brief.
The Earl of Caithness: Perhaps I may remind the noble Lord, Lord Whitty, before he becomes thoroughly cross with me, that I have no direct interest or any indirect financial interest at all in this. It is some years since I was a land agent but I have talked to people in the profession and fellow surveyors.
I was grateful for what the Minister said. I was grateful too for what the noble Baroness, Lady Young of Old Scone, said. I should have been much happier if the Minister had said what the noble Baroness said. That would certainly have carried more weight in the Official Report.
But there are two points to make. There is a change in the law. The Minister is wrong to say that the law has not changed. There is a definite change from the 1981 Act. As I recall that Act, there is no requirement to enhance SSSIs. I am sorry if I did not make it clear when I spoke originally. I am in favour of enhancing SSSIs but the point which I perhaps did not bring out as clearly as I should have done is that I am concerned about the financial implications for the owners and occupiers of the land.
If the law is changing so that it imposes this extra duty on landowners, why is it not clearer under the Bill? Why is not included with the other obligations in the new Section 28E?
Lord Whitty: We are dealing here with notification. I should say that I accept what the noble Earl says

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about his own interest and I am grateful to him for clarifying that. I did not say that there was not any change in the law. I said that no direct liability arises from that change in the notification procedure. That is what is being dealt with here, whereas the later section deals with other matters in relation to the management of the SSSIs rather than the notification procedure as such.
The Earl of Caithness: But if the notification procedure comes within Section 28E—and it gives a list of authorities—surely the owners should be included in that. That makes it much clearer.
Lord Whitty: Section 28E refer to public bodies, which have a responsibility for enhancement. That is written into Section 28E.
The Earl of Caithness: I shall read with great care what the Minister said and reserve the right to return to this matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 459 and 460 not moved.]
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 461:
Page 91, line 29, at end insert—
("(9A) The Council shall establish and maintain a list of sites of special scientific interest which shall contain such information as is prescribed by the Secretary of State.").
The noble Baroness said: The purpose of this group of amendments is to establish a full list of sites of special scientific interest, including associated information, and to require owners and occupiers to inform the nature conservation agencies of changes of ownership.
The noble Lord, Lord Bridges, referred to Schedule 8 as having draconian powers. It has strong powers for good reason. However, now that the schedules associated with SSSIs have such powers, it is right that the information as to who owns them, when they change hands, which public bodies own them is apparent. The public at large should have access to information regarding areas that are notified as SSSIs.
Amendment No. 461 would establish an up-to-date list of all notified land and include information to enable anyone to see what is required of them in relation to an SSSI. There are approximately 23,000 owners and occupiers of SSSIs in England and around 5,000 in Wales.
Lord Bridges: I thank the noble Baroness for giving way. The draconian powers to which I referred are not in this part of the schedule. They are in the denotification procedure in Section 28C(6). That is what I shall speak to when we reach that point. I did not refer to the matter about which the noble Baroness is speaking.
Baroness Miller of Chilthorne Domer: I apologise to the noble Lord. Nevertheless, with the enhanced
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powers under the Bill, it will be important for people to know what are SSSIs and what are not. The Bill needs to be clear about that.
Amendment No. 470 would make it a requirement that any owner or occupier must inform the statutory nature conservation agencies when they sell, transfer or otherwise dispose of land within an SSSI. That would enable the agencies to maintain an up-to-date list and to approach the new owner to talk about site management. That is equally important to ensure that potential owners are aware of the sort of responsibilities they are taking on and are able to discuss management agreements at an early stage.
Amendment No. 498 would make the failure to inform the agencies under this section an offence. In the final analysis, it would be easy to ensure that the list is up to date and as full as possible. I beg to move.
Lord McIntosh of Haringey: If it is convenient for the Committee, I should like first to speak to the government amendment in this group and then to the other amendments.
Amendment No. 499 adds another section to Schedule 8; that is, Section 28N. It sets out a clear procedure for ensuring that the conservation agencies are notified in writing when the ownership or occupation of an SSSI changes. It addresses concerns expressed by farmers and landowners that information about notification of SSSIs is not always readily available to new purchasers. Many recognise how important it is that discussion about management of notified land takes place at an early stage. The amendment places the duty to inform the agency on the owner when disposing of any of his or her interest in the land or when he or she becomes aware that it is occupied by an additional or different occupier. There have been instances in the past where a new landowner or occupier has carried out damaging operations in ignorance of the fact that the land was an SSSI. As well as being concerned to protect the SSSI, this amendment also seeks to protect the interests of a new owner or occupier and means that the conservation agency will be able to contact new owners or occupiers, explain the details associated with the notification and discuss the management of the site.
While prospective purchasers should in fact identify an SSSI notification in a pre-purchase search, by virtue of the obligatory local land charge entry, there have been cases where it has been alleged that this has not happened. Also, an occupier, or short-term licensee, may not carry out such formal investigations and this amendment seeks to address that situation. Because we believe it to be important that the agency is fully informed, we have provided for an offence of not complying with the provision without reasonable excuse, but we have set the level of fine proportionately at level 1; that is, only £200.
Amendments Nos. 470 and 498 address the same issue, but they differ. Amendment No. 470 places the duty on both the owner and the occupier to notify the conservation agency. I see no reason to extend the duty beyond the owner, who holds the superior interest and

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will therefore be more appropriately responsible for notifying any change of occupier. Amendment No. 498 imposes a penalty of up to £1,000 and makes the offence indictable where the owner or occupier fails to notify the conservation agency. I believe we should keep the penalty proportionate to the offence and level 1, as proposed in the government amendment, is more suitable.
I turn back to Amendment No. 461 proposed by the noble Baroness, Lady Miller. The amendment would require the conservation agencies to maintain a list of SSSIs, containing information prescribed by the Secretary of State. The Government are fully committed to greater openness about SSSIs and the new provision requiring that new SSSI notifications should be published in a local newspaper helps fulfil that commitment. We have also stated in our public consultation paper on the draft SSSI code of guidance that we will expect English Nature to make information readily available, in a variety of formats, on the extent and location of SSSIs and the reasons they are considered special. However, I am not convinced that this should be subject to a statutory requirement.
Of course, the fact that land is notified as an SSSI should be recorded on the local land charges register. Steps are already being taken by English Nature. For instance, it is already publishing both the citation—the description of the features which are special—and the digital boundaries of SSSIs on its web site, which is, after all, publication of a list. Checking its website, or requesting further details from English Nature about a specific site, is a simple next step enabling anyone to discover the status of a site. I am not clear what the existence of a "list" would add to that.
We should also exercise some caution and consider where there are special interest features that are particularly fragile or rare or endangered species. If there is a perceived risk or threat, the agencies must have some discretion as to whether information about those sites should be readily available. We had disputes in Europe with the habitats directive when it was originally said that a list of all the sites should be made available. But it was recognised in due course that for particularly vulnerable sites it was not a good idea to make them public. On that basis I hope that the noble Baroness will not press her amendment.
Midnight
Baroness Miller of Chilthorne Domer: I thank the Minister for that response. If his intention is eventually to create a full national list, I suggest Amendment No. 499 will take a long time to come into effect. The land will have to have changed hands for that to happen. But I hear the Minister's reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 462:
Page 91, leave out lines 30 to 33.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 463:
Page 91, line 34, leave out second ("and") and insert ("to").
The noble Lord said: Amendments Nos. 463 to 465 may look rather daunting. However, their intent is simple. It is to allow the conservation agencies to make adjustments to SSSIs in the light of new information or further knowledge.
Amendment No. 464 seeks to enable the conservation agencies to rationalise existing SSSIs by making essentially minor extensions to them. The amendment is not open-ended. It provides that the power can only be used where the additional land is adjacent to the SSSI and where it can be combined with that SSSI to form an area of land of SSSI quality by the reason of the flora and fauna of the original SSSI. In other words, if we tried to use this provision to make major extensions, we would inevitably be changing the character of the SSSI and it would not work. Existing owners and occupiers of the SSSI are not affected. But the owners of the adjacent land are given full rights to make representations or objections.
Amendment No. 465 enables the conservation agencies to enlarge the area of an SSSI in rather wider terms to Amendment No. 464 but there are additional safeguards. The amendment provides that where the conservation agencies consider that an area of land together with an existing SSSI forms a larger area which is of SSSI quality, it may establish a new SSSI for the whole area. This is so even if the flora, fauna and special features of the combined area are different from those of the original SSSI. However, the conservation agencies will be required to give notice to all the owners and occupiers of the combined area, so the owners and occupiers of the original SSSI will be notified. All owners and occupiers are given the right to make representations and objections as though the area is a new SSSI. Therefore, no one is being deprived of his normal rights under Section 28.
In relation to a boundary amendment to reduce the area of land covered by the notification, the agency would use the de-notification procedures in new Section 28B of Schedule 8, which may be applied to all or part of a site. It is common sense for the agencies to be able to make these changes. Notifying adjacent land as a separate SSSI could lead to confusion for all concerned. However, we have also sought to protect the interests of owners and occupiers of the land by making sure that the agency must notify the relevant people and by providing those persons with the opportunity to make representations about the changes. Any representations which are not subsequently withdrawn would be considered by the agency's council before the notification is confirmed. I beg to move.
The Earl of Caithness: I have two brief questions to ask the Minister. Why in Amendment No. 464 is the present landowner not consulted, yet a neighbouring landowner would be consulted? As my noble friend the Duke of Montrose pointed out earlier, adjacent land is affected by an SSSI so why is it necessary to have Amendment No. 464? The noble Lord, Lord

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McIntosh, earlier asked me to give evidence to support my request so perhaps I may ask the same of him. What evidence does he have that English Nature requires this power?
Lord McIntosh of Haringey: The answer to the noble Earl's first question is that by definition Amendment No. 464 cannot change the characteristics of the existing SSSI. Therefore, there can be no legal obligation to consult the owners of the existing SSSI. There will be no change in the regime that applies to them.
As regards his second question about examples, English Nature advises us that there are occasions when the SSSI will be improved without being changed by addition of a modest amount of adjacent land.
Baroness Young of Old Scone: Perhaps I may help by giving an example of that last point. If, for example, a riverine SSSI is notified and eventually confirmed, as many as 400 owners and occupiers can be involved. That will be subject to the length of the river and the fact that small parts of people's land are contiguous to it.
If any change to the boundary of an SSSI is required there must be a process of going back to all 400 landowners, even though they might be 20 miles away down the river. That would be the case even to take only a small parcel of land which was omitted on the first occasion because there was insufficient information about its quality or because, frankly, people got it wrong.
The proposal is put forward in order to try to take the burden off landowners. We want to avoid anyone who is not discommoded by an extension having to read through the whole consultation process again. Therefore, I hope that the proposal will be seen as positive rather than negative.
Lord Bridges: As the noble Lord, Lord McIntosh of Haringey, referred to new Section 28C perhaps this is a convenient moment to express my anxieties about the present drafting. The problem, which does not arise directly as a result of any particular amendment, concerns the withdrawal of a notice of consent. The Shellfish Association of Great Britain has alerted me to a difficulty which may arise in the area where I live. I do not own a fishery and shellfish disagree with me. However, that activity takes place on the river surrounding the place where I live, and I am somewhat concerned by the provision as presently drafted.
The village of Orford in which I live was a medieval port. In the 13th century Henry III gave the then Borough of Orford a charter in which he conveyed to it the rights of several fishery. Orford became a rotten borough in the 18th century. It was disfranchised under the Great Reform Bill and, under the subsequent Municipal Corporations Act, its assets were transferred to a town trust, which continues to this day. The trust controls the fishery in a serious way and is registered with the Charity Commissioners. It employs a bailiff and a committee deals with the
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fishery. That committee meets twice a year to receive a report from the bailiff. As far as I know, its affairs are carried on very properly.
However, it is possible that English Nature may, for some reason, become concerned about the fishery. If so, the procedure to be followed worries me. New Section 28C(6) provides that the council may withdraw the consent or modify it in any way. An appeal against that decision is to the Secretary of State. I very much hope that that will not happen, but if it does I question whether that is the right way for the appeal to be referred. I would have thought it more appropriate for the rights conveyed under a royal charter granted 650 years ago to be referred to a court rather than the Secretary of State.
The Secretary of State has a close relationship with the agency since he funds it and appoints its members. In those circumstances, I do not believe that the Secretary of State has the right degree of independence to make a withdrawal of such a fundamental right. I do not expect the Minister to be able to answer this question completely today, but I should be grateful if he would give it attention, possibly with a view to slight amendment at a later stage. This is a matter of natural justice in the context of a long-standing right.
Lord McIntosh of Haringey: We try to anticipate, as far as possible, questions that may arise from amendments. When they do not do so it is a little more difficult to deal with. I hope that the noble Lord, Lord Bridges, will allow me to write to him on this matter.
The Duke of Montrose: I am grateful to hear the response of the Minister to Amendment No. 465. I believe that I am now a little wiser on the subject than I was. The Minister said that, under Amendment No. 465, if an SSSI was extended its nature might be changed and owners would be notified. Does it mean that all the existing management agreements would fall and fresh ones would have to be introduced to cover the stipulations in the new SSSI?
Lord McIntosh of Haringey: It is most unlikely that the change we anticipate in Amendment No. 465 will necessitate the renegotiation of management agreements. However, if it did so, in the light of the principles of natural justice I am sure that it would be possible to find a way to do that.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 463A:
Page 92, line 17, at end insert—
("( ) Where a notice under subsection (3) has been given and is subsequently withdrawn, the Council shall reimburse any costs reasonably incurred by any of the persons mentioned in subsection (3) in making any representation or objection in relation to the notice.").
The noble Earl said: In moving Amendment No. 463A I should like to speak also to Amendment No. 487A. I hope that both noble Lords opposite have received calls to join the English cricket side; they are

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better at defence than the team appears to be. So far they have said "no" to everything that we have put to them today.
Lord McIntosh of Haringey: In the course of proceedings at Committee stage we have been criticised by the noble Baroness, Lady Byford, for being too receptive and running the risk of an overextended Report stage.
Baroness Byford: I should like to put the record straight. When Members of the Committee are not in the Chamber at the right moment sometimes there is misunderstanding. I am grateful for what Ministers have tried to do. However, I said earlier that if noble Lords opposite accepted our amendments the Report stage would be even shorter. However, I suggest that we move on.
Lord McIntosh of Haringey: Or much worse!
The Earl of Caithness: I hope that on this occasion the Minister will just be able to say, yes. I know that the noble Lord has beside his bed Section 31 of the Land Compensation Act 1961, in particular the section on withdrawal of notices to treat. It is common justice and an established principle that, where a statutory body serves a notice and commences proceedings and then withdraws, compensation should be available. That is the purport of the amendment. I beg to move.
12.15 a.m.
Lord Whitty: Despite the indication of my noble friend Lord McIntosh of our generosity, I do not think that this is standard practice. My understanding of what occurs in planning procedures, which is a parallel situation, is that there would be no reimbursement of costs in connection with making representations or opposing notifications. The costs of an application or of objecting to a planning application are not paid. Possibly we are at cross-purposes.
In terms of land management, there was an argument about the costs which might apply in relation to making substantive changes to the SSSI. But in terms of making applications, I do not think that is standard practice. In this context management schemes, although a new statutory provision, are in essence confirmation of existing management statements on conservation. So I do not think that a new situation arises. There is currently no provision for reimbursement and there is no case for providing any in the future. I hope the noble Lord will not pursue the amendment.
The Earl of Caithness: There are precedents. Certainly the Land Compensation Act is one. I will seek further advice and return to this at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendments Nos. 464 and 465:
Page 92, line 23, at end insert—
("Notification of additional land.
28AA.—(1) Where the Nature Conservancy Council are of the opinion that if land adjacent to a site of special scientific interest ("the extra land") were combined with the site of special scientific interest ("the SSSI"), the combined area of land would be of special interest by reason of any of its flora, fauna, or geological or physiographical features, the Council may decide to notify that fact.
(2) If they do so decide, the persons whom they must notify are—

(a) the local planning authority in whose area the extra land is situated;

(b) every owner and occupier of any of that extra land; and

(c) the Secretary of State.

(3) No such notification may be given until after notice has been given under section 28(5)(b) confirming (with or without modifications) the notification under section 28(1) relating to the SSSI.
(4) Subsections (2) and (3) of section 28 shall apply for t he purposes of this section as they apply for the purposes of that section.
(5) A notification under subsection (2)(b) shall also specify—

(a) the area of land constituting the SSSI;

(b) what (as at the date of the notification under subsection (2)(b)) is specified or contained in the section 28(1)(b) notification relating to the SSSI by virtue of section 28(4); and

(c) the reasons why the Council is of the opinion referred to in subsection (1).

(6) In addition, the notification under subsection (2)(b) shall include a statement—

(a) saying whether or not anything among the matters specified in the notification by virtue of subsection (5)(c) is particularly relevant to the extra land; and

(b) if any such thing is of particular relevance, specifying which.

(7) Subsections (5) to (7) of section 28 apply in relation to a notification under subsection (2) of this section as they apply in relation to a notification under subsection (1) of that section, as if references to "subsection (1)" in section 28(5) to (7) were references to subsection (2) of this section.
(8) As from the time when a notification under subsection (2)(b) is served on the owner or occupier of any land, the notification under section 28(1)(b) shall have effect as if it included the notification under subsection (2)(b).
(9) As from the time when there is served on the owner or occupier of any land which has been notified under subsection (2)(b) a notice under section 28(5)(b) (as applied by subsection (7) of this section) confirming the notification under subsection (2)(b) with modifications, the notification under section 28(1)(b) (as extended by virtue of subsection (8) of this section) shall have effect in its modified form.
(10) A local land charge existing by virtue of section 28(9) shall be varied in accordance with a notification under subsection (2) or under section 28(5)(b) as applied by subsection (7) of this section.").
Page 92, line 23, at end insert—
("Enlargement of SSSI
28AB.—(1) Where the Nature Conservancy Council are of the opinion that any area of land which includes, but also extends beyond, a site of special scientific interest ("the SSSI") is of special interest by reason of any of its flora, fauna, or geological or physiographical features, the Council may decide to notify that fact.
(2) If they do so decide, the persons whom they must notify are—

(a) the local planning authority in whose area the land (including the SSSI) is situated;

(b) every owner and occupier of any of that land (including the SSSI); and

(c) the Secretary of State.

(3) Subsections (2) to (8) of section 28 apply to a notification under subsection (2) of this section as they apply to a notification under subsection (1) of that section, as if references to "subsection (1)" and "subsection (1)(b)" in section 28(2) to (8) were references to subsection (2) and subsection (2)(b) of this section respectively.
(4) No notification may be given under subsection (2) until after notice has been given under section 28(5)(b) (or section 28(5)(b) as applied by subsection (3)) confirming (with or without modifications) the notification under section 28(1) (or subsection (2)) relating to the SSSI.
(5) As from the time when a notification under subsection (2) is served on the owner or occupier of any land included in the SSSI, the notification in relation to that land which had effect immediately before the service of the notification under subsection (2) shall cease to have effect.
(6) A notification under subsection (2)(b) of land in England and Wales shall be a local land charge; and, to the extent that any such land was the subject of a local land charge by virtue of section 28(9), that local land charge shall be discharged.
(7) A notice under section 28C(1)(a) and a consent under section 28C(3)(a) given before a notification under subsection (2)(b) continue to have effect.
(8) The enlargement of a site of special scientific interest under this section does not affect anything done under section 28H to 28J.
(9) Any reference to—

(a) a notification under section 28(1) (or any of its paragraphs) shall be construed as including the corresponding notification under subsection (2);

(b) a notification under section 28(5)(b) shall be construed as including a notification under that provision as applied by subsection (3); and

(c) a local land charge existing by virtue of section 28(9) shall be treated as including one existing by virtue of subsection (6).").

On Question, amendments agreed to.
[Amendment No. 466 not moved.]
Baroness Byford Baroness Byford moved Amendment No. 467:
Page 93, line 36, at end insert—
("(d) that the operation has been carried out in accordance with the terms of an agreement with a section 28E authority which has acted in accordance with section 28G").

The noble Baroness said: This amendment relates to agreements with bodies other than English Nature and CCW. I beg to move.
Baroness Wilcox: I wish to speak to Amendment No. 497B. The amendment overcomes a shortcoming in the Bill that may have the effect of denying foreshore fishermen their livelihood. New Section 28M(6) of the Bill makes it an offence for a third party to damage, destroy or disturb the features of an SSSI. That fills a loophole in the current legislation. Unfortunately, the Bill makes any damage, destruction or disturbance an offence and does not take account of the magnitude of harm or the legitimacy of the activity causing it. As it reads, it will have the effect of making legitimate activities illegal.
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Fishermen have gathered cockles and mussels from our shores for generations and continue to do so within many SSSIs. However, the effect of new Section 28M(6) would be to make their activities illegal—perhaps they disturb the oyster catchers or because the cockles and mussels they are gathering are features of the SSSI. For example, the largest mussel bed in Morecambe Bay lies within the South Walney and Piel Channel Flats SSSI, and mussels are listed by English Nature as a feature of that site. In its present form the Bill would make the removal of any mussels from this SSSI an offence.
I would submit that the Bill is not intended to make legitimate activities illegal; rather it is intended to protect SSSIs from harm. The amendment I have proposed would not weaken SSSI protection but would give nature conservation agencies and other statutory bodies the option of managing third party activities so that they can take place without causing undue harm to the SSSI. I hope that the Government will be able to accept the amendment.
The Earl of Caithness: Amendment No. 497A is grouped with Amendment No. 467. The amendment seeks to ensure that owners and occupiers who are farming in accordance with a statement given under new Section 28(4) are not subject to prosecution. As the Bill stands, it appears that they might do so quite unwittingly in carrying out normal farming occupations; for instance, making hay from a flower meadow, grazing livestock or heather burning. It would be wrong for owners and occupiers to be put in jeopardy of prosecution for carrying out something perfectly normal. Inevitably, the mere fact of burning heather will damage the SSSI temporarily, but the result will be much better, stronger and newer heather in the future.
Lord Whitty: Amendment No. 497A adds, for owners, an excuse of acting in accordance with the statement of views about management of the land issued with the SSSI notification. It is unlikely that the activities would be on the list of operations likely to damage the site. It would be odd if they were. It is also inappropriate to add this proviso since the statement of management views is a broad, high-level statement which will not be sufficiently comprehensive to describe individual operations. It is not intended to constitute a consent for activities, and there may be a question of degree which would need to be determined. That should be the subject of discussion between the parties.
While I would not rule out the use of new Section 28M(6) against an owner or occupier who exceeded the authorisation given to him, in most cases it would be unreasonable for the conservation agency to assume that if a prosecution could not be made under new Section 28M(1), because of reasonable excuse, then it could take action under new Section 28M(6). I hope the noble Earl is following that. I am not entirely sure that I am.
I turn to Amendment No. 497B. With regard to the commission of an offence where a damaging activity is taking place under the terms of an agreement, such

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matters should have been the subject of separate consideration by the conservation agencies. If they have not consented, individually or through the terms of a management scheme, to the terms of the operation, or if it is being carried out in a way which damages the special interest, that is not a good reason to provide a defence against prosecution.
But we can look further at the question of agreements reached with other public bodies. I am aware that liaison takes place at various levels between the agencies and MAFF and its agencies and local officers. That includes consideration at a strategic level, when developing the schemes; at a local level, where officials from relevant bodies meet to discuss regional conservation issues; and at an individual level on particular agreements. We want to encourage that. I am also clear that the conservation agencies will be seeking to reduce the number of occasions on which formal consent will be required. That is in their interest, as well as the interests of owners and occupiers.
I hope I can assure noble Lords that Ministers will be encouraging the agencies to minimise the amount of time lost on bureaucratic discussions and maximise the time spent on actually improving the condition. We need to minimise the scope for disagreement and uncertainty here, as well as to avoid undertaking prosecutions where that can possibly be achieved.
We shall consider the arguments that have been put forward, but I hope that noble Lords will not seek to press these amendments.
Baroness Byford: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 468:
Page 93, line 43, leave out from first ("to") to end of line 44 and insert ("every owner and occupier of any of the land included in the site of special scientific interest, or the part of it to which the consent relates—").
The noble Lord said: This government amendment is clarificatory, along with its associated amendments, Amendments Nos. 469, 471, 472 and 473. These amendments concern the situation where an owner or occupier has given notice to the agency that they wish to carry out operations on the list of potentially damaging operations which accompanies the notification of a SSSI. If the agency refuses consent or grants a consent with conditions which are not acceptable to the applicant, then an appeal may be made to the Secretary of State.
Amendments Nos. 468 and 469 relate to the situation where consent has been granted in the past, but the conservation agency now considers that the operation is too damaging and should not be permitted or that it should be modified. This may be due to changed circumstances, or the long-term effects of the operation may be more damaging than the agency previously thought. The agency must then serve the notice withdrawing or modifying the consent on all of the present owners and occupiers of the land covered by the consent.
Noble Lords will appreciate that the original notice of intent to carry out the operation may have been given by a previous owner or occupier. Amendment No. 469 specifies all of the information that owners and occupiers must be given with the notice withdrawing or modifying the consent. That explains their rights of appeal, when the notice comes into effect, and, where a person incurs loss as a consequence of the withdrawal or modification, that the agency shall make a payment.
Amendments Nos. 471, 472 and 473 alter the reference to "a person" to read "an owner or occupier". That has been done for internal consistency. I beg to move.
Lord Glentoran: Perhaps I may speak briefly to Amendment No. 476. This seeks to ensure that inspectors hearing appeals should have appropriate land management experience. We feel that it is important for the effective hearing of appeals that those appointed not only understand the legislation relating to SSSIs but also understand the management issues arising out of SSSIs. This could require an understanding, for example, of farming or forestry issues or perhaps one of the many other scientific disciplines which we discussed in an earlier debate.
The amendment would require the person hearing the appeal to have such expertise.
Lord Whitty: Of course we all wish to ensure that those hearing appeals are in a position to make a considered judgment. The Secretary of State has at his disposal the whole of the planning inspectorate, which can call upon a wide variety of qualifications. Many of its members are land agents or qualified in the environmental sciences and so forth. For each appeal, an inspector with the relevant expertise will be allocated to it. I believe therefore that the objectives of the noble Lord's amendment will be met by the procedures that are to be put in place.
The noble Lord may also be relieved to know that the Bill already allows the Secretary of State to appoint an assessor to sit with the inspector if that proves to be necessary. That would cover any other problems which may arise, because the assessor would be fully competent to cover any further technical issues. I hope that that meets the noble Lord's requirements.
Lord Glentoran: I thank the Minister for that reassurance. We hope that, when drafting the regulations relating to appeals, the Government will agree to take these points on board.
On Question, amendment agreed to.
Lord Whitty Lord Whitty moved Amendment No. 469:
Page 94, leave out lines 2 to 5 and insert ("matters set out in subsection (7A).
(7A) The matters referred to in subsection (7)are—

(a) the rights of appeal under section 28D;

(b) the effect of subsection (8); and

(c) in the case of a notice under subsection (6), the effect of section 28K.").

On Question, amendment agreed to.
[Amendment No. 470 not moved.]
Lord Whitty Lord Whitty moved Amendments Nos. 471 to 473:
Page 94, line 14, leave out ("a person") and insert ("an owner or occupier").
Page 94, line 16, leave out ("a person") and insert ("an owner or occupier").
Page 94, leave out lines 20 to 22 and insert—

("(c) an owner or occupier who is aggrieved by the modification of a consent;

(d) an owner or occupier who is aggrieved by the withdrawal of a consent,").

On Question, amendments agreed to.
[Amendments Nos. 474 to 476A not moved.]
12.30 a.m.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 476B:
Page 95, line 54, at end insert—
("(3) Unless otherwise required pursuant to the provisions of another statutory provision, the duty to further the enhancement of flora, fauna or geological or physiographical features in subsection (2) shall not require a statutory undertaker to remove or alter any apparatus, plant or equipment whatsoever installed or kept installed by that statutory undertaker pursuant to its statutory obligations, powers or duties over, under, in or on any ground where the ground is within a site of special scientific interest or where the ground is in the vicinity of such a site.").
The noble Lord said: This is a probing amendment intended to elicit confirmation from the Government that the obligation on companies holding licences under the Electricity Act as Section 28E authorities to further the conservation and enhancement of the features of an SSSI will not require them to move their electric lines and electrical plant to another location or to place the lines or plant underground. I do not think there is any doubt that a company holding one or more licences under the Electricity Act 1989 will be a statutory undertaker and so will be a Section 28E authority.
The concern of the companies arises from the use of the word "enhancement" in Section 28E and how it may be interpreted. The ordinary meaning of the word implies an increase in the obligations which the companies currently have to preserve SSSIs and the imposition of a positive obligation on them to improve the appearance of the SSSI. This is likely to result in claims that the companies should remove lines on or in the vicinity of SSSIs or place them underground.
I understand that the Department of the Environment has said that there was no intention that companies should have to remove their electric lines or place them underground. The amendment qualifies the word "enhance" so that it is clear that there is no requirement for a company, as a statutory undertaker, to remove any of its overhead or underground electric lines or electrical plant on, under or over an SSSI or in the vicinity of an SSSI.
The amendment recognises that there may be grounds in a particular case for an electric line to be moved. In such circumstances, the same principle should apply as in any other case where there is a
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request to remove an electric line and the procedures in the Electricity Act 1989 for considering such a request should apply. The qualification of the duty to enhance an SSSI is made subject, therefore, to a limitation that it does not prevent the consideration of the merits of retaining a line in situ under Schedule 4 to the Electricity Act 1989 or any other statute. I beg to move.
Baroness Byford: I speak to Amendments Nos. 477, 483 and 483AA, which are in this group.
Amendment No. 483AA is a probing amendment. It seeks to include the words,
"and shall take into account the conditions imposed by any existing management agreement".
Amendment No. 477 would require Section 28E authorities which carry out works on SSSIs—for example, utility companies laying pipelines—to notify English Nature and CCW not only of those operations which they consider would be likely to damage the site but of any operation listed in the site notification papers as being likely to damage it. It requires such bodies to have more regard to the list of operations included in the notification than the Bill presently requires.
It is an issue of equity. There is a lesser duty on statutory undertakers who undertake works on SSSIs than there is on owner-occupiers who undertake works on SSSIs. The duty on the undertakers is to give written notice to English Nature or CCW before carrying out any operations likely to cause damage on an SSSI. In contrast, the duty on owners and occupiers under Section 28C(1) is to give written notice to English Nature or CCW before carrying out any operations specified in the notification.
Amendment No. 483 complements the early amendment to the proposed new Section 28F(1), relating to new Section 28E authorities that carry out work on or affecting SSSIs; in Section 28G(2) the focus is on the Section 28E authorities which authorise operations on or affecting SSSIs. I commend the amendments to the Committee.
Baroness Wilcox: I rise to speak to Amendment No. 483A. I proposed the amendment to overcome an administrative problem created by the Bill.
Under the Bill as drafted, subsection (4) of new Section 28G would require any statutory body to wait for 28 days after consulting the council before issuing any permission. This 28-day delay must be respected, even if the council should inform the statuary body that it has no objection to the proposal in less than 28 days.
I submit that the purpose of this part of the Bill is not to introduce unnecessary delays into the administrative process but to ensure that the council is allowed ample time to formulate its response to a consultation.
My amendment would still defend the right of the council to take up to 28 days to respond, but it would also allow statutory bodies to issue permissions promptly if the council should respond more swiftly.

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I feel that this amendment would retain the effect of this part of the Bill without adding an unnecessary bureaucratic burden.
I turn to my Amendment No. 483B. The amendment seeks to make the Bill more efficient in its implementation. Subsections (1) to (6) of proposed new Section 28G require statutory bodies to consult the council before issuing any permissions relating to activities likely to harm the SSSI. These sections provide an important safeguard for SSSIs, and I welcome them.
Unfortunately, the process set out in new Section 28G is "blind". 1t requires consultation over all permissions, even where they relate to benign aspects of an activity. To take an example, the North Western and North Wales Sea Fisheries Committee issues approximately 60 authorisations a year to fishermen, enabling the use of metal stakes to secure nets on the shore anywhere in its district. This SFC has over 140 SSSIs within its district, and coastal fishing is listed as an,
"operation likely to damage the special interest",
of many of them. However, the risk of a metal stake damaging the features of these SSSIs is, at best, remote. The Bill would thus require the North West and North Wales Sea Fisheries Committee and the council to undertake a vast number of ultimately pointless consultations.
As I read this part of the Bill, it is not intended to create unnecessary work for administrative bodies. It is intended to ensure that activities that pose a real threat to an SSSI are subject to scrutiny.
My amendment would allow the council and statutory bodies the option of agreeing to exempt certain permissions from the Section 28G consultation process. This will allow them to focus their energies on the permissions that do need to be scrutinised.
In suggesting the amendment, I have been mindful of the need to ensure that SSSIs are properly protected. The second part of my amendment requires any consultation agreements to be written down, and enables the council to call for the review of such agreements if it is concerned that exempted permissions might affect the SSSI. I commend the amendments to the Committee.
Baroness Young of Old Scone: Perhaps I may comment on Amendments Nos. 477 and 483 tabled by the noble Baroness, Lady Byford. The noble Baroness's concern was that a more onerous requirement was being laid on owners and occupiers than on public authorities. It is almost the other way round; in fact, it is diametrically the other way round. The Bill places far more strenuous requirements on public authorities in terms of thinking more widely about operations which might damage an SSSI rather than the very limited list in the notification. It might even not be their activities on the SSSI, which is all that is specified by the notification. It could well be activities adjacent or in another place that would, for
494
example, have a downstream effect on the SSSI. The Bill places slightly more onus on public authorities than on owners and occupiers.
Lord Whitty: We do not really believe that most of these amendments would add anything; indeed, they are probably unnecessary and could, in some cases, be counter productive. However, the one amendment that I should like to take away and reconsider is Amendment No. 483A, which deals with a body being able to authorise an operation before the expiry of 28 days. I can envisage situations where that might be helpful. I am grateful to the noble Baroness for bringing the matter to our attention. I can at least undertake that we shall seriously consider bringing forward an amendment at the next stage to meet that point.
Amendment No. 476B seeks to qualify the general duty imposed upon public bodies by expressly prohibiting the application of the duty as a means to require a statutory undertaker to remove or alter any apparatus, plant or whatever installed pursuant to its statutory obligations. This amendment is unnecessary because the duty imposed by new Section 28E—subsections (1) to (2)—is in the nature of a general duty consistent with the proper exercise of the statutory functions. It must, therefore, be consistent with the latter. Where a statutory undertaker has apparatus or equipment, as mentioned in this amendment, on an SSSI in pursuit of those functions, there will be no question of the undertaker being required to remove those items if they are there for that purpose.
Amendments Nos. 477 and 483 would require a public body to notify the conservation agency where it proposes to carry out an operation that is specified in an SSSI notification, or where it assesses the operation "may damage" the SSSI. I believe that the Bill, as drafted, already catches the operations listed within the notification. New Sections 28F and 28G are already drafted to catch both the operations likely to damage the site, and any activities that might take place off site but which might nevertheless have a detrimental effect on the SSSI.
However, the list provided with a notification—to which this amendment attempts to refer—is the list of operations that might be undertaken by an owner or occupier and for which he may be seeking consent. They are not targeted at all the operations that a public body might undertake either on or off the SSSI. Therefore, it would not be helpful to cross-refer to the list of operations relating to an owner or occupier.
In relation to the other parts of those amendments, I can offer reassurance that, as a matter of good administrative practice, the agencies already provide public bodies with copies of SSSI notifications. We recognise the importance of ensuring that they are fully aware of the location and nature of these important sites.
I have dealt with Amendment No. 483A. However, in relation to Amendment No. 483AA the crucial matter to be taken into account by the statutory undertaker, or any other public body, is the advice

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expressly given to it by the conservation agencies, as required under new Section 28G(5). It must be for the conservation agency to consider how far it needs to reflect in that advice any conditions in any management agreement. Indeed, it would be unreasonable to expect the statutory undertaker to try to take into account matters in the management agreement as the undertaker would not be party to that agreement. Therefore, the obligation rests with the conservation agency.
Amendment No. 483B provides an exemption from the Section 28G procedure where the conservation body and the public body enter into a written agreement. I understand the motivation behind the amendment; namely, to avoid multiple consultations and unnecessary bureaucracy. It would be sensible for public bodies that regularly undertake particular activities on or affecting SSSIs to draw up in advance the terms under which they will operate a number of those operations. However, the terms of the amendment reinforce my concerns about tying public bodies to the operations likely to damage list which applies to owners and occupiers. That might actually preclude the public body and the agency from reaching an understanding covering particular activities that might be assessed as operations that are not likely to damage.
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Therefore I think that it would be sensible for the agency and the public bodies to behave in the way that the noble Baroness, Lady Wilcox, seeks. But this amendment would preclude them from doing so by cross-reference to a list which is not appropriate in those circumstances. I hope that the noble Lord, Lord Roberts, will not press his amendment, and that I have explained my position on the other amendments in the group.
Lord Roberts of Conwy: With regard to Amendment No. 476B, I am grateful for the Minister's reassurance that companies will not be required to remove their electricity lines or plant in the vicinity of SSSIs or place them under ground. I am sure that I speak for my noble friend Lady Wilcox when I say that she too is grateful for the reassurance that she received that the Minister would reconsider the 28-day period. In view of that reassurance I shall not press the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 477 not moved.]
Lord McIntosh of Haringey: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at fifteen minutes before one o'clock.

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