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Standing Committee A
The Committee consisted of the following Members:
Chairmen:
Mr. Eric Forth, †Janet Anderson
Atkinson, Mr. Peter (Hexham) (Con)
Baldry, Tony (Banbury) (Con)
†Breed, Mr. Colin (South-East Cornwall) (LD)
†Chaytor, Mr. David (Bury, North) (Lab)
†Cunningham, Tony (Workington) (Lab)
†Goodwill, Mr. Robert (Scarborough and Whitby) (Con)
†Herbert, Mr. Nick (Arundel and South Downs) (Con)
†Kidney, Mr. David (Stafford) (Lab)
†Knight, Jim ( Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
†Mann, John (Bassetlaw) (Lab)
†Moon, Mrs. Madeleine (Bridgend) (Lab)
†Paice, Mr. James (South-East Cambridgeshire) (Con)
†Palmer, Dr. Nick (Broxtowe) (Lab)
†Smith, Ms Angela C. (Sheffield, Hillsborough) (Lab)
†Tipping, Paddy (Sherwood) (Lab)
†Williams, Mr. Roger (Brecon and Radnorshire) (LD)
Alan Sandall, Libby Davidson Committee Clerks
† attended the Committee
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Thursday 30 June 2005
(Afternoon)
[Janet Anderson in the Chair]
Clause 61
Restriction on creation of new public rights of way
Question proposed [this day], That the clause stand part of the Bill.
1 pm
Question again proposed.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Jim Knight): It is a pleasure to see you back in the Chair, Ms Anderson, because we are discussing a subject that I know is of great concern to your constituents.
The clause is the first of four that deal with the recording of certain public rights of way for mechanically propelled vehicles. An extensive public consultation exercise was published in December 2003—it was referred to this morning—on the use of mechanically propelled vehicles over rights of way, which listed more than 14,000 responses. After careful, balanced consideration, we set out the intention to legislate in our framework for action document in January and clauses 61 to 64 deliver that commitment.
The whole Committee agrees that there is a significant problem with irresponsible drivers and riders of vehicles churning up our rights of way in the countryside, and that is must be addressed. We heard the hon. Member for Banbury (Tony Baldry) talking about the Ridgeway this morning. It is one of the most celebrated—if that is the right word—trails which has suffered damage. All parties agree that the actions of those irresponsible people need to be addressed, which is what the clauses will do.
Clause 61 reflects proposal 3 of the Government proposal paper, relating to the rights that might be acquired in the future by virtue of the use of mechanically propelled vehicles on certain routes. At first sight, it appears to be the key clause in part 6 of the Bill. I would argue that clause 62, which deals with the main issue of historic rights, is the key clause. Clause 61 deals solely with the future acquisition of mechanically propelled vehicle rights—for example, during the period 2010 to 2030.
There is considerable ambiguity about the extent to which mechanically propelled vehicular rights can be acquired. For example, it is not clear whether use of a way by someone on a bicycle could give rise to a right of way for all vehicles, including those that are mechanically propelled, and the law would benefit from clarification on this point. Clearly, evidence of
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bicycle use or use by other non-mechanically propelled vehicles should not give rise to rights for mechanically propelled vehicles in the future.
The Highways Act 1980 provides for the presumed dedication of a way as a highway after use by the public for a period of 20 years. Until a recent court judgment, it was always considered that the law would not countenance the creation of rights based on long use that was prohibited by statute. Since the offence of driving on a footpath or bridle way was introduced in the Road Traffic Act 1930, it has been considered that illegal use of a route by a mechanically propelled vehicle for a period of 20 years would not give rise to a vehicular right because the movements were illegal. However, since the judgment of the other place in Bakewell Management Limited v. Brandwood in April 2004, it now appears that use by mechanically propelled vehicles of a footpath or bridle way for 20 years, despite being illegal, may give rise to mechanically propelled vehicular rights in certain circumstances. That means that rights might be acquired in the future by deliberate illegal use of a footpath by a mechanically propelled vehicle, which is clearly unacceptable.
Of more concern are the wider implications of the Bakewell case in relation to historic public rights of way, which I shall come to when we consider the next clause. This clause will ensure that, post commencement, no new rights of way can be created by the use of mechanically propelled vehicles over any routes that were recorded or capable of being recorded as public rights of way on local authorities’ definitive maps.
I shall now try and address some of the points made in the debate on the clause, starting with the contribution made by my hon. Friend the Member for Bassetlaw (John Mann), who has been a robust champion of the need to resolve the matters in the clauses that we are discussing. He made a useful contribution this morning, and he yet again demonstrated his commitment to resolving those matters.
My interpretation of what my hon. Friend said suggests that most of the answer to his question will be in the debate about clause 62; however, it is worth responding to some of the questions that he raised about the process—assuming that we agree to clause 61—that is followed if riders want to set up a new trail. Given that thousands of trail bikes are being used, it is thought sensible to make provision for them to be ridden somewhere. Otherwise, we may inadvertently create an environment in which there is a great deal of illegal use of trail bikes. If people use their trail bikes illegally, they may go anywhere and destroy particularly sensitive environments, so there is a pragmatic argument for making some provision.
It is important to consider how provision might be made. The answer is through dedication by a landowner. The hon. Member for Brecon and Radnorshire (Mr. Williams), for example, may want to dedicate some of the land that he farms. However, it would be difficult, if not impossible, to establish a definitive map. I have just had a long and slightly
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tortuous discussion with my officials about that point, and they advise me that the provision would not apply, as creating a new byway open to all traffic would require an assessment by the authority that the right of way was principally for horse riders or for walkers, and not for mechanically propelled vehicles, because then it would be a road. I am sure that that is clear.
John Mann (Bassetlaw) (Lab): It sounds as though the rest of the Committee wants to concentrate on clause 62, but I see the main problems as being in clause 61. Is it not the case that if the Bill is passed unamended, trail riders or any other group who feel that they have lost any ability to create a new right, even when it is non-contentious, will be able to mount a legal challenge to the legislation? Through the legislation, someone must be able to say, “We think that this particular route is highly applicable for trail bikes and other motorised vehicles.” They must be able to do so in a way that means that the rest of the community can take a view on the matter, so that it can be appropriately determined.
My opposition to trail bikes, which arises from the problems in my constituency, is not an attempt to remove the right to ride them when there is agreement. I should like to see somewhere of an appropriate size designated for people properly to practise their sport, so that walkers, horse riders and others know that it would be particularly stupid to go there. I should like to see such balance and sense, but my fear is that the balance needed to allow all groups to have appropriate access is not provided for. That is why I question the Minister again about whether provision will be possible under clause 61.
Jim Knight: If one were to create a motor vehicular right of way, one would be creating a road. It might be untarmacked and it might be unadopted, but it would still be a road. We are talking about future rights, rather than rights in the past. The procedure that we would go through in any other circumstances in respect of creating a road would apply. The question of a legal challenge applies if we retrospectively remove rights. I am sure that we will discuss that, perhaps even in some detail, when we come to clause 62.
One other point was raised by my hon. Friend the Member for Bassetlaw and repeated articulately by my hon. Friend the Member for Bridgend (Mrs. Moon), who said that she was concerned about the ability to protect biodiversity and habitats, as the whole Committee has been throughout its discussions. Again, if we apply new criteria to people who apply to assert rights—even if we were talking about the future, they would still be applying to assert historic rights—we will be into the whole business of retrospectively changing people’s rights, which, as I have said, I will discuss in much more detail in the context of clause 62. I hope that that is helpful.
The hon. Member for Banbury understandably and rightly raised issues relating to the Ridgeway. The Ridgeway national trail extends from near Avebury in Wiltshire to Ivinghoe beacon in Buckinghamshire. Roughly a quarter of it is a byway open to all traffic, a
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quarter is roads used as public paths and the rest is either bridleways, footpaths or quiet roads. It is widely agreed by all parties that there are long-established motor vehicular rights over roughly half of the Ridgeway so removing the historic rights, as we will be debating in relation to clause 62, does not solve many of the problems.
As with other national trails, the Ridgeway is managed by a group made up of the Countryside Agency and the local highway authorities through whose counties the trail runs. The previous Minister, my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael), convened and chaired a series of meetings in the Palace of Westminster over a period of 18 months or so at which he encouraged the Ridgeway management group, led by the Countryside Agency, to develop a management plan to address the problems created by the use of vehicles on the Ridgeway. The plan comprised a mixture of traffic regulation orders and maintenance measures. The management plan is well under way and seems, so I am told, to be largely successful, since much of the controversy over the Ridgeway has subsided.
The hon. Member for Banbury has apologised that he is unable to be present this afternoon; he has to attend the Africa debate on the Floor of the House. I promised him that I would address his points so that he could read my reply later in Hansard. He has raised some concerns, so although some of the controversy that my Department was hearing about seems to have subsided, it clearly still exists in his constituency.
The use of traffic regulation orders will become important in resolving some of the problems on the Ridgeway and elsewhere where rights are asserted successfully and there remain problems in respect of damage to the environment by the use of mechanically-propelled vehicles.
John Mann: As I understand the Minister, he is saying that, if it was deemed appropriate, it would be highly appropriate for a local authority to use a traffic regulation order to prohibit motorised vehicles where their presence was regarded as unwelcome and that that kind of initiative, if it was felt locally appropriate, would have the endorsement—I do not mean specifically, but in terms of a methodology—of his Department.
Jim Knight: Obviously, the highways authorities would have to go through the necessary process, but subject to that, that would seem to be the effective local action. Indeed, in the example that we are using, the five local authorities that span the Ridgeway, or the Secretary of State, could make a traffic regulation order covering the entire length of the Ridgeway if that became necessary. However, they have in place a management plan that uses traffic regulation orders selectively on the most vulnerable sections. As I said, so far that seems to be having a good effect.
1.15 pm
John Mann: Has the Minister had any discussions with the Home Office about whether it would be appropriate on the basis of countering crime and
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disorder to use a traffic regulation order to prohibit the use of motor bikes—for example, unlicensed motor bikes—that are acting illegally ?
Jim Knight: I have not had any discussions with the Home Office about that but it is a point that I will reflect on, particularly in the context of the guidance that we intend to publish soon for local authorities and the police on the enforcement of vehicular offences on rights of way. We hope that, by publishing that guidance, we will assist the police and local authorities to take robust action. Local highway authorities need to have clear and agreed policies in place on the use of traffic regulation orders. That will enable them to be more decisive when deciding to make individual orders. The traffic regulation orders in place on the Ridgeway have demonstrated how quickly orders can be put in place provided that a firm decision is made that is backed by a prompt but robust assessment of the relative need to hold a public inquiry. That is an issue that we are considering and on which we will issue guidance.
I think that that answers the comments that were made in the debate on the clause.
Question put and agreed to.
Clause 61 ordered to stand part of the Bill.
Clause 62
Ending of certain existing unrecorded public rights of way
Mr. James Paice (South-East Cambridgeshire) (Con): I beg to move amendment No. 72, in clause 62, page 24, line 29, leave out ‘commencement’ and insert ‘19th May 2005’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 122, in clause 62, page 24, line 29, leave out ‘commencement’ and insert ‘9th December 2003’.
No. 123, in clause 62, page 24, line 29, leave out ‘commencement’ and insert ‘20th January 2005’.
No. 71, in clause 62, page 24, line 36, at end insert—
‘(1A) Where an application to register a right of way for mechanically propelled vehicles was made on or after 19th May 2005 and before commencement the authority to whom application was made may decline to register the right of way on a definitive map or statement if it considers that use of the right of way by mechanically propelled vehicles would be—
(a) detrimental to the natural environment, or
(b) detrimental to the interests of other permitted users.’.
No. 73, in clause 62, page 25, line 6, leave out ‘commencement’ and insert ‘19th May 2005’.
Mr. Paice: Welcome back to the Chair, Mrs. Anderson.
Like the Minister, I share the view that clause 62 is by far the most important clause in this part of the Bill. What it seeks to do—as a simple man, I paraphrase for simplicity—is ensure that if a right of way is not approved for mechanically propelled vehicles, it cannot be approved after the date of commencement.
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That is unless one is a landowner or lawful visitor to that land—a land-user—or if a right is specifically created under subsection (2). That is a simplistic way of expressing the meaning of the clause, but it is a paraphrase of what is being proposed.
The issue was debated widely on Second Reading. Virtually everyone who spoke then referred to the proposal and all of them did so supportively. Not only that but everyone, from both sides of the House, expressed the same concern about the date of commencement. That point was made from all quarters. The clear sense of the House was that the matter was urgent.
This morning, the hon. Member for Bridgend referred to information that we have now all received from the Green Lanes Protection Group. It gives some worrying statistics. It refers to the fact that, in Hampshire in the first five months of 2005, there have been 74 claims to establish a BOAT, compared with only six such claims in the whole of 2004. Half the new claims have been made by the Trail Riders Fellowship. In Somerset, 134 claims are in progress, compared with 13 previously outstanding. In Derbyshire, there have been 80 claims since December 2003. In the Lake district, 50 plus application packs have recently been requested by the Trail Riders Fellowship. The situation is similar in the Yorkshire dales. I am sure that every county with such rights of way will face a similar number of claims. The point that hon. Members were making is that because the Government flagged up this proposal a long way in advance, everyone who wanted to establish a right for mechanically propelled vehicles understandably rushed to do so before the Bill closed that option.
As hon. Members and the Minister have said, there is a serious problem because some—but only some—users of rights of way for mechanically propelled vehicles abuse that right. They make too much mess, show disregard for other users and, as I said on Second Reading, want the ground to be churned up and turned into mud because that is more exciting. That does not apply to everyone; some simply want to go for a ride in the country and a green lane is good place to do so. However, sadly, those who just want a pleasant ride in the country are being seriously affected by the behaviour of others.
I know that the Government and the previous Minister, the right hon. Member for Cardiff, South and Penarth, had long consultation, including with the user groups, to try to find a way forward. The Minister may tell us that those discussions are ongoing, but the reality is that we need a law to back them up. Even if an agreement can be reached with the Trail Riders Fellowship, the Land Access and Recreation Association or one of the other user groups, that would not require compliant behaviour by anyone else. Once a right of way is established for mechanically propelled vehicles, it is open to anyone who wants to go roaring up and down it. If they are not members of an organisation, there is nothing, as the law stands, to stop them doing so and chewing it up.
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I am a basically a libertarian in my attitude to life and do not want to stop people doing things, but I and my party have reluctantly come to the view that we must stop what is going on, as the Government are doing. There are better ways of providing land for the use of mechanically propelled vehicles, such as the way I touched on during an earlier debate with the hon. Member for Brecon and Radnorshire. Individual landowners could provide facilities or many landowners working together could do that. We already have the concept of permissive paths whereby people can create a footpath out of the goodness of their heart, and I cannot understand why they could not create similar paths and allow mechanically propelled vehicles to use them.
Mr. Roger Williams (Brecon and Radnorshire) (LD): I greatly appreciate the hon. Gentleman’s comments, which could apply to owners of public land. The Forestry Commission or the military could provide such facilities without disturbing the people who use the countryside for other recreation.
Mr. Paice: I am grateful to the hon. Gentleman for making that point, which I was about to make. England has large tracts of forest and other publicly owned areas of land that could be used, although we do not want forest to be chewed up any more than necessary just because it happens to be protected from public view.
There is another analogy. Many farmers in Essex have joined together in an organisation to provide horse rides, for which the riders pay—I do not know how much, but believe that it is not much. The farmers have provided very long rides. The riders wear an armband to show that they have paid and can ride for mile after mile, from farm to farm on interconnecting paths. That has nothing to do with legislation or rights of way, but is a facility for enjoyment. For the life of me, I cannot see why the same principle cannot be adopted for people who genuinely want to take their vehicle, whatever it may be, for a gentle ride in the country. That is a sensible way forward.
I have come to the view that the legislation is right, so I return to the principle behind the amendment: how do we deal with the problem that is clear in the figures and that was referred to on Second Reading? Once the previous Minister had announced the consultation process, those who wanted to establish more vehicular rights of way immediately set about trying to speed up their application rate. That is human nature; it has happened many times.
Those of us who have been in this House for a few years can recall other occasions where people’s behaviour has been affected by impending legislation. I remember it happened when the Conservative Government were in office and the Chancellor of Exchequer announced that he was going to withdraw the double mortgage tax relief for house buying. I do not know whether you were in the House at the time, Mrs Anderson, but he announced that he was going to do so several months in advance and we all remember that there was a sudden surge in demand for houses because everyone wanted to get their double mortgage
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tax relief. I know that that is a wholly different issue, but the principle is exactly the same. Impending legislation controls human behaviour, which is what we are dealing with in this group of amendments.
I was particularly concerned by the remarks made by the hon. Member for Sherwood (Paddy Tipping) on Second Reading, which have now been endorsed by another briefing that we have received from the ramblers. On Second Reading, he said:
“I am told that the reason why a long commencement date is envisaged is that the Government have received legal advice that there are human rights implications.”—[Official Report, House of Commons, 6 June 2005; Vol. 434, c. 1029.]
Almost identically, the ramblers have said:
“The Government claims that it has legal advice which suggests there are European Convention on Human Rights implications associated with the extinguishment of rights without a period of notice, but it has so far failed to release that advice.”
I reflected on that in my own winding-up speech, and it is clear from one or two letters that I have had that some people misunderstood the import of my remarks. My remarks were intended to show that I failed to understand how human rights legislation could be used to allow users of vehicles to continue using a road if that were contradictory to the human rights of all the other users of the byway—I should not have used the word “road”. It seems to me that one set of human rights are put against another. If the Minister is going to raise the same point—I cannot say “again” because he did not raise it last time—in this debate, I hope that he will share with us the legal advice and give us a bit more substance.
Mr. Colin Breed (South-East Cornwall) (LD): I, too, reflected on the issue of human rights. I thought that if one were to withdraw something that people were currently using, and people had invested and planned to make use of a right that was suddenly withdrawn, there might be a problem. However, that had nothing to do with giving people a future right. The right in question related to those who are currently enjoying a benefit or using a right that is suddenly withdrawn, which might have implications under the convention. It had nothing to do with rights that were to be withdrawn from people who do not have them at the present time. A person cannot plead that they will be affected by the taking away of a right that they do not yet have.
1.30 pm
Mr. Paice: I agree. If anybody proposed that we change the law where there is already on the definitive map rights of way for mechanically propelled vehicles, I could see how human rights legislation would come into play, because we would be removing an established legal right. However, we are talking about the right to seek to establish a right—the right to apply to have a byway registered on the definitive map as usable by mechanically propelled vehicles. That is why I hope that, if the Minister is still of a mind to reflect on the legal advice, he will share it with us.
I am not a lawyer, but I do not understand how the proposal is logical when compared with the human rights of everybody else. As soon as one gives rights for
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mechanically propelled vehicles, one is acting to the detriment of the human rights of other people who want to use the byway. In the past few days, I have received letters from people throughout the country saying, “Of course, we’ve got horse riders, and we don’t mind a little bit of mud. We don’t expect to go walking in the country in sandals,” although some people clearly do. The letters also say, “We expect it to be wet and perhaps a bit slippery and to wear our wellingtons, but we can’t cope with mud and water up to our knees.” It is dangerous for a horse to go through deep mud, because one does not know what is underneath it. There could be broken glass and all sorts of things. The human rights of those users are directly affected once the right of way is given to mechanically propelled vehicles.
There is a concern about the time scale. The Government appear to imply in their comments that the commencement is some way off, and that it will be not on the date of Royal Assent, but some considerable time hence. That is even more worrying, because I suspect that the significantly increased flow of applications will turn into a flood—indeed, some would say that it already has.
I contend that, at the very least, the tap should be turned off from the date of the Bill’s publication. In my amendments, I have provided a range of options, and I readily accept that all of them are retrospective, and that two of them are seriously retrospective. It is conceivable that we would be taking away rights where applications since the date that I shall come to have already gone through. Nevertheless, there is a case for it, because people have applied in the knowledge that the right may change.
The first obvious date that one could use, which is in amendment No. 122, is 9 December 2003. That was when the Government went out to consultation about the issue, and it must have been the date when the warning flags went up for those who want to establish rights of way for mechanically propelled vehicles. In true justice, that date would be my favoured option, because since then human behaviour will have been affected and it will have sought to accelerate the trend.
The second and much more recent optional date is 20 January 2005, in amendment No. 123. That is the date on which the right hon. Member for Cardiff, South and Penarth, then the Minister for Rural Affairs and Local Environmental Quality, announced the conclusion of his consultation—in other words, when he announced what he was going to do and what is now in the Bill. It seems that that would have been a trigger for more people to apply.
The final and minimum date that we should use is 19 May, the date of the Bill’s publication. It was the date when the Government not only said what they were going to do, but made it abundantly clear. There it was in black and white, and that was what it was going to mean.
I hope that the Government will listen to my arguments. I am sure that the Minister has plenty of contrary arguments, including the legal advice.
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Perhaps he does not agree with the individual dates, but the views that I have expressed had the general support of everyone who spoke on Second Reading.
Finally, I refer to amendment No. 71, which takes a slightly different approach. Again, this group of amendments offers a menu. I do not pretend that all the amendments could be accepted—I would be happy if one were—but for the purpose of debate they present options to the Committee and to the Government.
Amendment No. 71 proposes:
“Where an application to register a right of way for mechanically propelled vehicles was made on or after 19th May 2005 and before commencement”—
in other words, the gap between 19 May and commencement, if the Government insist on a long commencement date—
“the authority to whom application was made may decline to register the right of way on a definitive map or statement if it considers that use of the right of way by mechanically propelled vehicles would be—
(a) detrimental to the natural environment, or
(b) detrimental to the interests of other permitted users.”
In some ways, the amendment addresses the point made by the hon. Member for Bassetlaw about the anomaly of other interested parties. It may not go as far as he wanted in other contexts, but it is a serious attempt to find a way through the impasse. If the Government believe that they have to follow the legal advice which we have not yet seen—or even officially heard of—this approach would provide them with a way to ensure that the large backlog that is accumulating does not drive a wedge through the principle behind the proposal.
I apologise to the Committee for taking so much time to introduce this group of amendments. I believe that they have widespread support across the House, at least in principle. In some ways, I am reluctant about them, inasmuch as I hoped that accommodation might be found in the countryside for everyone. I do not like saying that a particular group should be excluded, but, after much consideration and many constituency cases, I have decided that we must accommodate mechanically propelled vehicles in a slightly different way from everybody else.
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