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Lord Renton: I think the Minister referred to Clause 52 in his reply. Is that right?

Lord McIntosh of Haringey: Yes.

Lord Renton: Clause 52 does not refer to Clause 47 and the creation of the definitive maps; it refers to Clauses 49 and 51. Clause 49 deals with the extinguishment of unrecorded rights of way and Clause 51 deals with bridleway rights over ways shown as bridleways. With great respect, neither of those clauses--nor, therefore, Clause 52--has anything to do with the time likely to be taken in creating the maps.

If I may say so, the noble Lord--as always--has taken a lot of trouble to master what he has to explain to the Committee, but I am rather surprised that no estimate has been made, either by Ministers or by officials, of the likely minimum and maximum periods for the creation of these maps.

It is very important. The Ramblers' Association and the landowners will be affected by it. The Ramblers' Association could be very disappointed if it takes too long.

Lord McIntosh of Haringey: My reference to the cut-off date in Clause 52 was simply that it was the cut-off date for extinguishment. The extinguishment process can take place only when all the other procedures, including those in Clause 47, have been completed.

The reason why we cannot give a minimum or a maximum is simple. A large part of the procedures are outwith the hands of government or of local authorities. They arise because there are opportunities for people to make claims, for the hearings or inquiries to be held and for appeals to be made; and all those

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depend on what other people do, not on what government do. That is, after all, the nature of our rule of law. I used the reference to Clause 62 merely to illustrate one of the needs for requiring local authorities to keep the documents available to the public.

Before concluding my remarks, I should say that I may slightly have misled the noble Baroness, Lady Miller. A cycle track is a specific kind of right of way but one that has been created deliberately and is, therefore, almost certain to be well signed and well understood. It is a more recent invention. In the rest of this part of the Bill we are dealing with rights that have existed back into the mists of time. That is why they are so difficult to deal with.

Lord Elton: Returning to the question asked by my noble friend Lord Renton, we have done something like this in the past, have we not? I remember that when I was chairman of a parish council in Leicestershire, some time between 1958 and 1961 we were required to record "purple routes" on the county map which was being drawn up as a statutory requirement so that there could be a national record of footpaths. Not without notice but at some point in the future, will the noble Lord let me know how long it took to complete that exercise--because I never heard of it being finished?

Lord McIntosh of Haringey: I can certainly let the noble Lord know that. I shall write to him on the subject, with a copy to the noble Lord, Lord Renton. But of course there are worse examples than that. We had reference in Part I to the Law of Property Act 1925, which defined urban commons, gave certain rights over them and allowed for certain procedures in defining them and in defining the rights. Those procedures have still not been completed after 75 years!

Lord Glentoran: Will the noble Lord give an assurance that, despite the many problems and trials and tribulations that there will be in putting these maps together, finance and money will not be one of them?

Lord McIntosh of Haringey: I think I can give that assurance.

On Question, amendment agreed to.

Baroness Scott of Needham Market moved Amendment No. 322A:


    Page 56, line 51, at end insert--


("Deletion of rights of way from definitive maps after the cut-off date.
54B.--(1) No order under this Part shall, after the cut-off date, be made under section 53(3)(c)(iii) so as to modify a definitive map and statement by the deletion of any way shown in the map and statement as a highway of any description at the cut-off date.
(2) In this section "the cut-off date" means, subject to regulations under subsection (3), 1st January 2026.
(3) The Secretary of State may make regulations--

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(a) substituting as the cut-off date later than the date specified in subsection (2) or for the time being substituted under this paragraph;
(b) containing such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the operation of subsection (1), including in particular its operation in relation to--
(i) an order under section 53(2) for which on the cut-off date an application is pending,
(ii) an order under this Part which on that date has been made but not confirmed,
(iii) an order under this Part relating to any way as respects which such an order, or any provision of such an order, has after that date been to any extent quashed.
(4) Regulations under subsection (3)(a)--
(a) may specify different dates for different areas; but
(b) may not specify a date later than 1st January 2031, except as respects an area within subsection (5).
(5) An area is within this subsection if it is in--
(a) the Isles of Scilly, or
(b) an area which, at any time before the repeal by section 73 of this Act of sections 27 to 34 of the 1949 Act--
(i) was excluded from the operation of those sections by virtue of any provision of the 1949 Act, or
(ii) would have been so excluded but for a resolution having effect under section 35(2) of that Act.
(6) Where by virtue of regulations under subsection (3) there are different cut-off dates for areas into which different parts of any way extend, the cut-off date in relation to that way is the later or latest of those dates.
(7) Where it appears to the Secretary of State that any provision of this Part can by virtue of subsection (1) have no further application he may by order make such amendments or repeals in this Part as appear to him to be, in consequence, necessary or expedient.
(8) An order or regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 357A which is grouped with it.

Summing up in a right of way case, Lord Denning once said that nothing excites an Englishman so much as a footpath. I have always thought that his remark did not say much for English women and spoke volumes for English men.

I was interested to hear the Minister say in his introductory remarks that Part II of the Bill was designed to modernise the rights of way system. Perhaps in his reply he will explain how.

Amendment No. 322A addresses the issue of deletions from the definitive map. The situation at present is that any landowner can seek to delete a path on the grounds that that particular right of way was originally put on to the map in error. In practice, that means re-opening arguments which in some cases were thought to have been settled 40 or more years ago. The cases are very difficult because much of the original survey work has disappeared, as, sadly, have the people who carried it out. It is not uncommon to find protagonists arguing over fragments of parish council records in order to establish the claim. I am told that

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that is becoming an increasingly frequent way of deleting paths from the definitive map. The Bill as drafted is silent on the question of such deletions. Our amendment seeks to remove that right of challenge after the cut-off date of 2026.

There is a question of natural justice here. If user groups and local authorities are having to work hard to research and establish rights before the judgment day, it is only right that landowners should have the same period of time in which to show that they think that rights do not exist. The effect of the amendment would be to strengthen the conclusiveness of the definitive map--something which I believe we all seek to do.

Amendment No. 357A addresses the issue of claims for new rights of way coming into existence between 1st January 1949 and the cut-off date of 2026 proposed in the Bill. Such a claim could come about as a result of showing a period of use during those years and then using either common law or the Highways Act 1980 to establish presumed dedication as a public right of way.

In such a situation it is quite likely that objectors to any claim would argue that a particular route was being used as a right of way before 1949 and, therefore, under the provisions of this Bill was automatically extinguished. Bizarrely, we could see a complete reversal of the current roles. Into the future, landowners will be trying to show that there was use by the public as of right before 1949 and claimants will be trying to demonstrate that there was not.

I am concerned anyway about the establishment of a cut-off date in order to extinguish old and possibly little used rights. But it is even worse to see this being used as a justification for extinguishing rights which demonstrably are being used.

The walking public are in a "lose-lose" situation under the terms of the Bill. Ancient rights which are infrequently used precisely because they are not recorded will be lost for ever; and after the cut-off date routes which are in use but where perhaps there has been some question and it is lost in the mists of time could also be lost by the use of the cut-off provision.

If this amendment is agreed to, routes with a record of use during the most recent three-quarters of a century would at least be judged on their merits and not be lost by default by use of the cut-off date. I beg to move.


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