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Miss McIntosh: Just for clarification, as these amendments are quite specific, I will seek a short debate on clause 2 stand part, if that is in order. I will therefore curtail my comments to simply moving the amendments at this stage.
Amendment No. 2 seeks to delete the text of lines 10 to 12 in proposed new section 129A of the original Government proposal in clause 2 that introduces a new part 8A, ''Restriction of rights over highway''. We are seeking clarification from the Minister of the
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circumstances under which the Government will take evidence, and what the weight of that evidence will be, to conclude that illegal business activities have been conducted. Also, what precautions will be taken as to who is currently the registered owner of the vehicle?
As drafted, the wording means that we now have a change in the law whereby, even if my vehicle is out of action and I am not seeking to drive it, I am still now required to license and insure it fully, whereas before, if it was so-called ''off the road'', the Driver and Vehicle Licensing Authority would not require the vehicle to be taxed or insured if it was not being used for a period of six months—or perhaps longer, I am not sure. That is quite a recent change.
Alun Michael: I may be wrong, as I am sometimes a little slow on such things, but it seemed to me that the hon. Lady's remarks relate to the vehicle issues that come later, rather than the alley gating issues dealt with by clause 2.
Miss McIntosh: Indeed. However, my understanding is that the gating order, as presently worded, says that
''premises adjoining or adjacent to the highway are affected by the crime'',
''the existence of the highway is facilitating the persistent commission of criminal offences''.
Is the Minister saying that illegal business activities would be excluded under proposed new section 129A for a gating order?
Alun Michael: The hon. Lady asks me a direct question. The trouble is, I am not sure I can respond to it as I do not understand the point she is making about vehicles.
Miss McIntosh: It may be that the matter primarily relates to vehicles, but my understanding is that a gating order could be put in place if the antisocial activity were deemed not just to be youths offending, but a number of vehicles blocking a right of way. I leave that point with the Minister.
The proposed subsection (3)(b) says that
''incidents of recorded crime have taken place''.
Can the Minister say for how long he envisages that the recorded crime will have taken place? I gather that he has persistent activity in mind, so perhaps he could give an indication of the thinking on persistent activities and incidents of recorded crime. The intention of the amendment is to elicit from him an explanation of how the reference to
''persistent commission of criminal offences or anti-social behaviour''
in proposed new section 129A(3)(b) to the Highways Act 1980 Act, on gating orders, will be interpreted. Is he saying that illegal business activities will be completed excluded and that abandoned vehicles will be treated only under clause 3, which I understand to relate to abandoned vehicles and the sale of vehicles?
My concern is that, under clause 2, someone who, for example, fails to sell a car and then goes on holiday may be deemed to be blocking. However, if that issue is
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best considered under clause 3, we can do so in a clause stand part debate. It would be helpful if the Minister could say how
''persistent commission of criminal offences''
will be interpreted.
Amendment No. 46 would insert a new subsection (4)(d) in proposed new section 129A on
''the likely effect of making the order on statutory undertakers whose apparatus is located in, on, over or adjacent to the highway.''
I omitted to say that I have a number of interests on the register that may be relevant to the debate, and I apologise profusely for that. I also hold a modest number of BT shares and personal equity plans in other companies, which may be relevant. Amendment No. 46 comes from BT but would also pertain to other utility companies. Would utility companies be presumed to continue to have access if a gating order is issued under section 149A or would there have to be specific provision in each gating order for those companies to have access?
Obviously that does not refer only to telecommunications companies. There could be overhead lines or electricity companies could be involved. Both of those are relevant, given that the high winds that the north of England and Scotland suffered recently brought down overhead electricity and telecommunications wires. Fixed lines are not the only ones affected; mobile telephones are affected as well. A range of utility companies would expect to continue to have access, but the Bill is not clear on what provision would be made for that continued access to be considered.
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Equally, to help the Government, amendment No. 47 would mean that
''the exercise of any right by a statutory undertaker''
would not be excluded. Proposed new section 129B(3) to the 1980 Act says:
''A gating order may not be made so as to restrict the public right of way over a highway for the occupiers of premises adjoining or adjacent to the highway.''
That raises various questions. How will the original wording be interpreted? Who will be responsible for policing it? Would the utility company have to apply to the local authority or could it be written into the gating order? If it could be written into the gating order, it would circumvent the whole procedure, and more than one utility company would be involved in each case.
On amendment No. 48, if a physical structure like a barrier is in place, would some means of access, such as an access code, be given to the public utility company to enable it to gain access and go about its business in the normal way? Amendment No. 49 recognises that
''statutory undertakers whose apparatus is located in on over or adjacent to the highway''
should continue to have access in relation to proposed new section 129C—the procedure for gating orders—which reads:
''Before making a gating order in relation to a highway a council must notify the occupiers of premises adjacent to or adjoining the highway''.
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How much notice would be given? Does the Minister expect the local authority automatically to contact all interested parties? Would statutory authorities be allowed access at the outset, as we press for, and would that be written on to the face of the gating order?
Amendment No. 50 is tabled in the most positive and constructive spirit possible. I do not see anywhere in the Bill, including in the schedules, any definition of a statutory undertaker. The amendment sets that out in the most comprehensive way possible. It reads:
'''statutory undertaker'' means—
(a) the person by whom a relevant statutory right is exercisable (in the capacity in which it is exercisable by him); or
(b) a person having permission under section 109 of the New Roads and Street Works Act 1991 (c.22) to execute road works, as the case may be references to an undertaker having apparatus in on over or adjacent to the highway, or to the undertaker to whom apparatus belongs, shall be construed accordingly.''.'.
The amendments are intended to be helpful and constructive. I think that the Minister will see why they are necessary to put the utility companies' minds at rest as to why the Bill is silent on that matter. At present, it simply refers to adjacent properties or informing and consulting the landowner. We would argue rigorously that the Government are obliged to instruct local authorities to consult the utility companies before the gating order is processed to ensure that everyone knows where they stand and legitimate companies can go about their business in the usual way.
Sue Doughty: Amendment No. 2 and our amendment No. 31 deal with similar issues. There is a lack of clarity about the circumstances under which a gating order can be made. We do not support amendment No. 2 because it includes only criminal behaviour. We are concerned whether a gating order would be sufficient to deal with antisocial behaviour. The amendment does not refer to the persistent committing of offences. We are worried that if something had happened once a while ago, only it could become the grounds for a gating order. Therefore, we need to know more about the circumstances in which a gating order will be put in place.
We tabled amendment No. 2 because it is not clear whether paragraphs (a), (b) and (c) of proposed new section 129A(3) are an either/or or stand by themselves. If it is this, that and the other, we may be trying to cover too many cases. There is a problem because we want to be able to make a gating order if, for example, people are using an alleyway as an escape route.
Alun Michael: I am trying to follow the hon. Lady, but to which part of the clause is she referring?
Sue Doughty: To proposed new section 129A(3), which begins:
''Before making a gating order in relation to a relevant highway the council must be satisfied''.
That is followed by paragraphs (a), (b) and (c). I am trying to discover whether they are either/or clauses and to ensure that councils have the necessary powers.
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It is possible that the highway referred to may facilitate persistent crimes or antisocial behaviour, or crimes that do not affect the adjoining premises, such as muggings. The highway may be an escape route or there may be fly-tipping in the roads. It would be clear if somebody went up the alleyway and tipped something into one of the gardens, but it would be less clear if the alleyway served no useful purpose and simply encouraged bad behaviour. Therefore, we have tabled the amendment to ensure that a gating order can be imposed in those circumstances.
Amendment No. 32 is straightforward. We are worried that there may be an impact on people with a disability and limited mobility, and we want to ensure that their needs are also taken into account and an assessment made. It is sometimes difficult for somebody with a disability to focus on other things. Life is not always easy in those circumstances, either for them or their carers, and they may not understand the impact of the gating order. Therefore, we want the clause to take account of disabled people. We shall listen to the Minister's response before deciding whether to press the amendment to a vote, but the needs of disabled people are important.
On amendment No. 33, how do we assess what is reasonably convenient, because the aim of the gating orders is not to be hostile or burdensome? Other people, such as cyclists and ramblers, use walkways, snickets, alleyways and byways. We must take into account whether they would have to go a long way round as a result of a gating order.
We support Conservative amendment No. 46 on statutory works by utility companies. The points were well made and we have no difficulty with them. On amendment No. 34, we are concerned because the gating orders seem to relate to urban areas and not to the countryside. We do not want farmers and landowners to think that gating orders will be made across their land willy-nilly. Again, the Minister, with his experience of the Countryside and Right of Way Act 2000, may want to comment on that. We want to be absolutely certain about that. If that is not the Government's intention, then the farmer is going to use it for his own personal convenience without any further justification, thereby limiting the access of people such as walkers and people on cycles who go across his land. We should like more information on that.
Amendment No. 35 would affect not only businesses, but farmers. We have to be certain that we are not restricting access to premises that are used for businesses. It would be wrong not to take their needs into account. We need to give businesses a chance to adjust and to say that there are other options. Most business men and farmers are reasonable people and will probably share similar concerns that lead to the gating order. However, we need to ensure that they have the opportunity to continue to conduct their business without a gating order being put in place that would the have a deleterious effect.
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Farmers in particular have been keen on supporting the main intention of the clause. The National Farmers Union told us that. It supports the prevention of environmental crime and of antisocial behaviour, but it is concerned that there is no protection for those whose property is not directly accessed from the gated highway. Farmers will go through a gate and go across country sometimes, and will use different routes, sometimes those that are commonly used by agreement with a neighbour and they do not own. That could be a problem.
I have a case that has resulted from the Highways Agency's failure to make the access to a farm absolutely clear when some land was sold, and the adjacent farmer effectively now owns complete access to that farm. The Highways Agency had got its map wrong, the farmer was quite elderly and did not notice the error, and the time lapsed in which he could appeal. Consequently, the access to his farm is owned not by the Highways Agency, who should own it, but by the adjacent farmer. It is a ransom strip. Relationships between the farmers are good and amicable, and there is no question about access, but there is the legal right for the new owner of the access to that farm to shut it off with no reference to the farmer. Indeed, he did that when the problem first arose, to prove that he had the right. There was no legal argument subsequently. So we are worried about that.
Farmers should have the right to the same access agreements as those who do not have adjoining and adjacent premises. They should have right of access by means of the key to the gate or a timed access agreement. There needs to be flexibility in that. Probably the way to deal with the problem is in guidance issued by the Government, but we need to ensure that it is covered. I am not sure whether they can deal with the retrospective problem of that ransom strip, but certainly it is something we would like to be considered now or at a later stage.
Amendment No. 36 asks again for a reasonable approach—in other words, that the barrier is not left closed when it is not needed, and that it is left open when the restriction is not in force. The presumption is on access rather than on closure. The gating order would say when the access will be closed and that outside of those times it should be left open. That is a reasonable expectation and, if people are aware of those rules, they will know that they can gain access in that way.
Amendment No. 37 reflects the possible problems arising when a barrier is installed in such a way that the space at the entrance of an alley is restricted by the structure. What sort of access will it affect? How is such a barrier to be put in place? Will it stop wheelchair users, buggies, people on mountain bikes and so on? Again, before deciding whether to press the amendment to a vote, we would be interested to hear the Government's response.
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On amendment No. 38, we have concerns about the process whereby a gating order is made. If an order is proposed, it is reasonable that people should be able to consider the matter. We must also consider appeals
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and whether an order should stay in force in perpetuity. What processes are there for councils to review orders?
Let us consider proposed new section 129C(1) on page 3 of the Bill. Without a requirement to make regulations, there will be no requirement for a public inquiry. With regard to more controversial cases in which a highway is used regularly as a thoroughfare by people who might not have been notified of the proposed gating order under other provision in the Bill, it is vital that a system is in place to ensure that an order has the community's support. We must involve not only the local crime and disorder reduction partnerships and other partnerships, but possibly the emergency services. Is the highway used by ambulances to get to a cottage at the end of the lane? What happens when the emergency services need to get there?
More notice and consultation must be provided in that respect. That is why we propose altering the word ''may'' to ''must'' so as to ensure that such bodies are consulted when regulations are put in place. We cannot allow them to find out later. It would be dreadful if a gating order was put in place and individuals needed to go to the High Court to put right any anomalies. That is a lengthy and expensive process, and it would be completely over the top. It would be a waste of money if it came to light that someone had not picked up early on the fact that they were able to put right a wrong or inquire into it further.
On amendments Nos. 39 and 40, there is a requirement to allow a request to go to a council to review a gating order, but the opportunity for a legal appeal is too narrow. The six-week time limit means that, if an order is made in circumstances in which the council has no power to make it or the requirements were not complied with but the six-week window has closed, it can simply stay in place. Our proposal would allow more time. I am thinking back to the problem with my local farmers. The window has closed and now nothing can be done about it. We must ensure that there is good provision in instances when there is a reason why someone did not know the relevant information or was not able to put the problem right. We want the ability to appeal if circumstances change, on the grounds that the requirements for making an order would no longer be complied with. In fact, we would welcome it if the Government reviewed their approach in a number of respects.
The next provision in the Bill relates to how information is provided. Again, amendment No. 41 would leave out the word ''may'' and insert ''must''. It is essential that we understand how people get to know the information. Information on gating orders is similar to all mapping information. We are talking about street indexes, mapping and who knows the information. How is it made available to the public and others? There is a lack of clarity in the Bill in that regard.
I shall make the wider point by giving a specific example. In Guildford recently, there have been a number of infill developments, including various roads and other developments. From time to time, the little
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charmers who have been dispersed as a result of dispersal orders have been dispersed to a new estate. In fact, one of the roads has been there for a couple of years but does not appear on police maps, so when local people, who pay quite a lot of money for the very desirable properties in the area, called the police, they spent 20 minutes looking for the road.
I do not believe that the Bill can deal with the generality of how maps get from A to B, but the specifics are relevant. Anyone who has been to their local police control centre will have watched someone telling the officer dealing with an incident that the group of people involved may have gone through a certain alleyway or directing the police to cut through to the next street because that is where the group is likely to be. That is normal police practice when an incident happens. If the area is gated, the police will not go to the right place; they will be better off getting into their police car, driving to the next street and catching the group there. If a police officer thinks that he will catch people at the top of the estate because they will run through an alleyway, but finds that the alleyway is closed, he will have wasted 20 minutes in trying to catch the people involved. That is a waste of police time and it upsets residents, as my e-mails show. If a gate is closed, that information is needed.
When I asked the police why the road that I have just mentioned was not on their maps, they told me that there were lots of gaps and overlaps in the information provided. Often, the police and the council submit information, and we must ensure that it is handed over in a timely manner. The regulations should ensure that councils reach a sufficient standard in keeping and providing information on gating orders. It is not enough just to do it, and in effect to say, ''That is for me to know and you to find out.'' Ambulance services keep different records from the police and the fire services use the county records, which are obtained where they are cheapest, from Ordnance Survey, and not when the gating order is made or there are changes to the roads.
We must ensure that radio operators, who have to take a lot of decisions, can deal with the situation. They are required to get on the telephone, talk to the police and get on to the next job. We want them to have good, clear information. We did not table an amendment at this stage to deal with the matter, as geographical information systems are complex. I suspect that many economies could be made in the public services by specifying standards and sharing information that would be dealt with more appropriately elsewhere, but when changes are made in the regulations, the authority should provide the information within a fixed time scale so that the police, the ambulance service and other emergency services have that information to hand.
Amendment No. 42 would ensure that when a gating order is in place people know when the gate will be open, which is important for the statutory undertakers, walkers and delivery people. There are all sorts of reasons why people need timely information, which should be available to everyone. The proposal makes it clear that it refers to an alley subject to a
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gating order, rather than to a private alley. That is an important legal difference, because we are not referring to households that may have access through the gate taking over ownership of the alley, which may belong to someone else. It is important to say to whom it belongs and what rules relate to it. By identifying those people, amendment No. 43 would make it clearer who should have to pay to get the information. Some individuals may be charged, but we want to ensure that those who are directly affected do not have to pay for the right to have that information, which should be provided to them free of charge.
Amendments Nos. 10, 11 and 12 would harden the rules to make sure that, when we look into the impact of the gating orders, we have the freedom to go backwards and say that we no longer need a particular order. We want to know that when circumstances change and the gating of a highway is no longer of benefit to the prevention of crime or antisocial behaviour—circumstances do change; that is down to local councils and the crime and disorder strategies—we can ask whether the area is still a problem. If a development has been built on the other side of a nuisance area and it is adequately lit, the gating order may no longer be needed because the circumstances that prompted it are no longer in place.
We need to ensure that we can review the orders, that people will ask whether they are still needed and that they do not just stay in place. The impact of gating orders is positive in reducing crime and disorder, and there are many other reasons why I support them. However, we also want walking strategies. We want more children walking, and we want people kept apart from cars. That is where many of the alleyways are involved. We want to make sure that we can review the orders so that we can develop walking strategies. Gating orders will sometimes work against that. Councils have difficult decisions to make, but we need to make sure that everything fits in.
Amendment No. 13 provides for the periodic reviews that we want, and amendment No. 44 goes back to my earlier point about how affected people can get a review without having to go to the High Court with their problems. Amendment No. 44 really fits in with the early amendments, because it asks people what they want to do. If someone wants to object to a gating order, they currently have to go to the High Court. That seems excessively onerous. People so often have to go to the High Court with disputes about land, and it would seem that there are more practical solutions than forcing them to do so.
We look forward to the Minister's response to those amendments, which are designed to strengthen the hand of those making the orders, but also to protect the communities and people who are incidentally affected, and particularly to ensure that the emergency services have the access that they need, so that citizens do not have an unreasonable wait for action to be taken.
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