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Baroness Farrington of Ribbleton: I am sorry if the noble Baroness, Lady Carnegy of Lour, thinks that. I believe the opposite to be the case. It is important to recognise that devolution exists. It is important also to recognise that the Government and those who support devolution expect there to be reason on both sides and that people will seek to agree.

I was not implying in any way that, were the majority of the Members of the Assembly to be Conservative, it would be impossible to reach agreement with them. I find the Welsh to be reasonable, even when they unreasonably vote Conservative. It is extremely rare for the Welsh to vote Conservative but they have been known to do so.

In response to the noble Baroness, Lady Byford, with regard to the issue of time and consultation, her reference is accurate in the majority of cases and in this case it would be a formal process laid down by Parliament. As she rightly said, it has a time-scale and we want to retain enough flexibility to ensure that the First Secretary for the Assembly was satisfied that, covering a specific period of time, he had had adequate time to discuss matters within the Assembly. Therefore, we would not want to lay down an absolutely rigid time-scale because it could be during a summer period or something of that nature.

This has been an important debate. I fear that those of us who support devolution are still experiencing a gap from those who are not totally confident in the outcome.

Lord Roberts of Conwy: Perhaps I may just make the point that I am not concerned with party political banter across the Floor of this Chamber. However,

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I am concerned with the constitutional position. Members on the Benches opposite should be similarly concerned.

Baroness Farrington of Ribbleton: I am sorry if anything I said seems to imply that I do not take this matter seriously; I do. I merely stress that internal consultation within the Assembly is not a matter for Westminster; it is a matter for the Assembly.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendments Nos. 342 to 349:


    Page 29, line 12, leave out ("subsection (1)") and insert ("this section").


    Page 29, line 14, at end insert--


(""relevant Welsh provision" means a provision contained--
(a) in a local or private Act passed before or in the same Session as this Act and relating only to areas in Wales, or
(b) in any subordinate legislation which was made before the passing of this Act and which the National Assembly for Wales has power to amend or revoke as respects Wales.").
Page 29, line 14, at end insert--


("(2A) In exercising the power to make regulations under subsection (1), the Secretary of State--
(a) may not make provision which has effect in relation to Wales unless he has consulted the National Assembly for Wales, and
(b) may not without the consent of the National Assembly for Wales make any provision which (otherwise than merely by virtue of the amendment or repeal of a provision contained in an Act) amends or revokes subordinate legislation made by the Assembly.
(2B) The National Assembly for Wales may submit to the Secretary of State proposals for the exercise by the Secretary of State of the power conferred by subsection (1).").



    Page 29, line 15, leave out ("this section") and insert ("subsection (1)").


    Page 29, line 16, leave out from beginning to ("even") and insert ("relevant provision").


    Page 29, line 17, at end insert--


("(3A) As respects Wales, the National Assembly for Wales may by regulations--
(a) provide for any relevant Welsh provision which relates--
(i) to highways or highways of a particular description,
(ii) to things done on or in connection with highways or highways of a particular description, or
(iii) to the creation, stopping up or diversion of highways or highways of a particular description,
not to apply, or to apply with or without modification, in relation to restricted byways or to ways shown in a definitive map and statement as restricted byways, and
(b) make in any relevant Welsh provision such amendments, repeals or revocations as appear to the Assembly appropriate in consequence of the coming into force of sections 43 to 46 or provision made by virtue of subsection (1)(a) or paragraph (a).").

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    Page 29, line 19, after ("made") insert ("by the Secretary of State").


    Page 29, line 21, at end insert--


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

On Question, amendments agreed to.

Clause 48, as amended, agreed to.

Clause 49 [Extinguishment of unrecorded rights of way]:

Lord McIntosh of Haringey moved Amendment No. 350:


    Page 29, line 30, after ("All") insert ("public").

The noble Lord said: In moving Amendment No. 350, I shall speak also to Amendments Nos. 351 to 356. These are technical amendments relating to Clause 49 which provides that footpaths and bridleways created before 1949 which have not been recorded on definitive maps by the cut-off date specified in Clause 52 shall be extinguished. Amendment No. 350 would ensure that no private rights of way--rights of way held by individuals or groups of individuals rather than the general public--are extinguished by Clause 49. It is public rights of way which definitive maps seek to record.

Amendments Nos. 351 to 354 relate to the case where a way shown on a definitive map as footpath, bridleway or restricted byway may have higher rights over it. Clause 49 also provides for the extinguishment of any such higher rights which were created before 1949 but which have not been recorded by the cut-off date. In other words, if a highway shown on a definitive map as a bridleway has pre-1949 vehicular rights over it, those vehicular rights will be extinguished on the cut-off date if the definitive map has not been modified to show the way as a byway open to all traffic. The bridleway rights would remain.

Amendments Nos. 351 to 354 deal with the situation where unrecorded higher rights exist over a highway which, although still shown on a definitive map on the cut-off date, has been so altered as to be no longer eligible for recording as a right of way. The amendments would ensure that those higher rights would not be extinguished. For example, a highway which is, in fact, a carriageway but which is shown on a map as a bridleway may not be capable of being recorded as a byway open to all traffic because it does not meet the definition of BOAT in the Wildlife and Countryside Act. It is not the function of definitive maps to record all vehicular highways, only those which are mainly suitable for walkers and horse riders. Clauses 49 to 52 apply only to highways which are required to be recorded in definitive maps. We do not want to extinguish rights which cannot be so recorded.

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Amendments Nos. 355 and 356 clarify the intention that, for the purposes of Clause 49, a footpath or bridleway which was created before 1949 shall be treated as such, even though it may have been diverted, widened or extended after that time. I beg to move.

On Question, amendment agreed to.

9.45 p.m.

Lord McIntosh of Haringey moved Amendments Nos. 351 to 357:


    Page 29, line 39, leave out from ("over") to ("is") and insert ("a bridleway, restricted byway or byway open to all traffic which").


    Page 29, line 41, leave out from ("along") to ("is") in line 42 and insert ("a bridleway, restricted byway or byway open to all traffic which").


    Page 29, line 44, leave out from ("over") to ("is") in line 45 and insert ("a restricted byway or byway open to all traffic which").


    Page 30, line 1, leave out from ("over") to ("is") in line 2 and insert ("a byway open to all traffic which").


    Page 30, line 7, leave out from ("whether") to ("for") in line 11 and insert ("any part of a highway was on 1st January 1949 a footpath or bridleway, or


(b)")


    Page 30, line 12, leave out from first ("over") to ("was") and insert ("any part of a highway").


    Page 30, line 25, leave out subsection (10).

On Question, amendments agreed to.

Clause 49, as amended, agreed to.

[Amendment No. 357A not moved.]

Clause 50 [Excepted highways and rights of way]:

Lord McIntosh of Haringey moved Amendment No. 358:


    Page 30, line 38, leave out ("not comprised in the same") and insert ("constituting or comprised in another").

The noble Lord said: In moving Amendment No. 358, I shall speak also to Amendments Nos. 359 and 360. These are technical amendments to Clause 50 which provides exceptions to the circumstances in which Clause 49 will operate to extinguish certain historic rights of way. Among these are footpaths and bridleways which run beside the carriageway.

As the Bill presently stands, it suffers from the minor ambiguity that "carriageway" may not mean a carriageway which is a highway. Amendment No. 358 is designed to put this right.

Amendment No. 360 is designed to simplify the language of Clause 50(5). Amendment No. 359 corrects a minor error in Clause 50(3)(a) where reference is made to "excluded highway". It should state "excepted highway". I beg to move.

On Question, amendment agreed to.


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