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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Amendment, by leave, withdrawn.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 moved Amendment No. 446A:


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.]


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