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Lord Whitty: My Lords, in so far as the powers to which I referred relate to the extension of the ability of local authorities to use traffic regulation orders in this context in order to protect flora, fauna and geographical features, the local authority would have the powers.

6.30 p.m.

Lord Williams of Elvel: My Lords, I am grateful to my noble friend for that response. I think that the noble Baroness, Lady Miller, put her finger on the point here; namely, that this is not a question that concerns SSSIs or national parks, because we all know that they are protected. This is a question that concerns areas of common land. After all, Wales comprises 8 per cent common land which lies outside SSSIs or national parks. What I have been seeking, and what I think I have now received--although I am not quite sure--is an indication from my noble friend that areas lying outside SSSIs or national parks will be protected and will enjoy greater protection as a result of this legislation.

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I should like to give way for another moment to my noble friend. I hope that he will be able to offer me some advice on this point.

Lord Whitty: My Lords, yes. I have also indicated that the measures to protect species, along with the measures as regards the powers of local authorities, to which I have just referred, would extend to all areas, not simply SSSIs.

Lord Williams of Elvel: My Lords, I am most grateful to my noble friend. I shall indicate to Powys County Council that it will be its duty, if the Bill becomes an Act, to write to landowners to say that this is the legislation as it stands. I shall also contact the Chief Constable to say that this is the new legislation and to ask him how police constables are to enforce it. That, of course, is a question of administration.

In the meantime, I am grateful to my noble friend for the assurances that I have elicited from him and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 193 not moved.]

Lord Williams of Elvel moved Amendment No. 193A:


    Page 105, leave out line 26 and insert ("and not subject to any other rights").

The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 194 and Amendment No. 264. This is an important matter. We had a discussion in Committee of a somewhat general nature about the damage caused by what might be deemed to be illicit driving down what I shall refer to as green lanes. I hope that noble Lords will understand what I mean when I use the expression "green lanes" without going into the legal details. I do not think that I have to elaborate on that issue.

By the time we reach Report, we should try to decide what the House wishes to do about a matter. There are two issues here. The Government have tabled Amendment No. 194 and I have tabled Amendment No. 193A. The two approaches are, if I may say so, rather different. I shall start by explaining Amendment No. 193A. If it were accepted, it would have the effect of banning motorised vehicles from green lanes unless their rights had been established under the definitive map procedures set out in the Wildlife and Countryside Act 1981. This would put them on the same basis as landowners, walkers and horse riders, who have to do the same. It would therefore create what is known in that unfortunate parlance as a level playing field between landowners, walkers and horse riders on the one hand and motorcyclists and four-by-four cars on the other.

In my amendment, the highway authority--which, after all, is the authority which determines the procedures under the definitive map process set out in the Wildlife and Countryside Act--would be allowed to control what goes on in green lanes. The status of

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the green lane would be decided and controlled by the highway authority and the definitive map. All that the magistrates would have to do, on any occasion where a dispute arose, would be to look at what is the status of the road, path or green lane and, only on the criminal charge, decide whether an offence has been committed in terms of fact. Magistrates have no jurisdiction to decide the status of byways, paths or green lanes. That is my starting point.

The Government approach this slightly differently in Amendment No. 194. If that amendment were to be accepted as it is, then on a case-by-case basis, magistrates would have to take a view, on the balance of probabilities, whether a certain green lane had vehicular rights. It is true that the Government have moved some way towards my position on this matter, in that the prosecution would no longer have to prove that they do have such rights, but the defence could quite obviously argue that they do not. Again, we enter what I shall call the "green lane" situation where the defence would argue and the magistrate would have to go through all the procedures of deciding whether a particular green lane had vehicular rights.

The problems with this approach are as follows. Magistrates' courts are not courts of record. If one magistrate decides that vehicular rights do exist on one particular green lane and another offence is brought before the court, then if the second magistrate--possibly a different stipendiary magistrate on this occasion--decides the case the other way round, it has no effect. In those instances, magistrates decide only for the purposes of the Road Traffic Act. Whatever decision is taken in a court of law--after all, magistrates' courts are courts of law--it will have no effect on what might be the status of the green lane when the definitive map is produced. I regard that as the first problem.

The second problem here is that, although I have great respect for magistrates, I do not see how magistrates' courts can be relied on here. These are extremely complicated issues. As I understand the government amendment, magistrates' courts are being asked to decide, on the balance of probabilities--which is a civil rather than a criminal test of proof--that vehicular rights may or may not exist in a particular circumstance, in a particular case, at a particular time. The resources that will be required for this will be absolutely enormous. In the Grimsell Lane affair, the stipendiary magistrate took three days to come to a decision, and even then he commented that it did not affect the status of the green lane in question.

Lord Phillips of Sudbury: My Lords, I hope that I am not interrupting the flow of the noble Lord. However, would he reconsider his statement that this would be judged according to a balance of probabilities on the civil test? Surely this is a criminal matter? Someone would be guilty of an offence which forms a part of the normal criminal framework of the Road Traffic Act. Is not the noble Lord wrong about this?

Lord Williams of Elvel: My Lords, I am grateful to the noble Lord, but I am right about this. As I

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understand the government amendment, the question of whether, for the purposes of a criminal offence, there are rights of way along a particular lane will be decided on the balance of probabilities. So the magistrates will have to decide, first, on the balance of probabilities whether such rights do exist. They will then have to address the criminal case and say, "Given our decision on the balance of probabilities, should we take the view of 'beyond reasonable doubt?'". That is the answer and it emanates from the Government's lawyers as well as my own lawyers. I have no doubt about this. I am only sorry if I have put down the noble Lord rather too severely.

I have now explained two problems in this area. We then have to address the problem that what happens on the definitive path, which is covered under the civil procedures of the Wildlife and Countryside Act, may or may not be affected by what successive magistrates decide. We may say that a magistrates' court is not a court of record, but if we had, say, 25 instances where magistrates decided that there were vehicular rights on a particular green lane, it would be very difficult for the highway authority to say there were not. But they may do so under the procedures of the WCA 1981. They are two quite different approaches.

I feel that the Government recognise that I have a point. I recognise that the Government have a point in that there must be some interim procedures before the definitive map becomes absolutely definitive. But the principle that the highway authority should determine the civil question of the status of a green lane must be sacrosanct. It cannot be left to magistrates' courts to decide that. I hope that my noble friend will consider carefully what I have said before we go any further.

To a certain extent, Amendment No. 264 is related to what I have to say. If Part II is not commenced in fairly quick time, local authorities will have to go on reclassifying RUPPs and so on until restricted byways can come in under the law. This seems a bit of a nonsense. I hope that my noble friend will be able to give an assurance that Part II will commence pretty quickly, otherwise local authorities will still have a statutory duty to do something which will be irrelevant once Part II comes into effect. I beg to move.

Baroness Scott of Needham Market: My Lords, I am glad that this issue has come back before us. Many noble Lords felt that the discussion in Committee was less than satisfactory and did not bring out all the issues to which the noble Lord has referred so well. I am also pleased that the two amendments are to be debated together as it gives your Lordships a chance to compare them.

I should say at the outset that, of the two amendments and the two approaches, I prefer those of the noble Lord to those of the Government. I shall explain briefly why. I accept and commend the fact that the Government moved quickly to reflect the concern that was expressed in your Lordships' House over the issue of the unlawful use of footpaths and bridleways. I have a suspicion that, perhaps in their

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haste to accommodate your Lordships' views, the Government were not as mindful as they might have been of the consequences of their approach.

We have to be very mindful of the role of magistrates' courts in this regard. Public rights of way get on to the definitive map in a number of ways, but very often it is after a long, expensive and tedious procedure. It cannot be right, for example, that the day after a footpath appears on the definitive map, someone can drive along it unlawfully and, should they be prosecuted, can go to the magistrates' court and re-run all the arguments that they previously lost as a defence against that unlawful use.

It leaves the magistrates in a difficult position. They are a fine body of people but, even for those with significant expertise and training in public rights of way law, these are very complicated matters. I am not sure that we should add this to the burden already held by magistrates. Can the Minister say whether he has had time to consult with the Bench and whether magistrates would like this duty imposed on them?

We also have to consider what happens next. Let us suppose that the magistrates decide that, on the balance of probabilities, there are vehicular rights. That decision will not change the definitive map; it will still show a footpath or a bridleway. So we are left in a position where, in effect, the magistrates' court has condoned the unlawful use of a route. It would not, of course, be unlawful--the court will have acquitted the accused person--but it will leave an anomaly between the definitive status of the route and what the magistrates have decided. That will mean that successive waves of drivers could use that route almost with impunity because, should the police take the trouble to prosecute them again, they will know that they have been let off before. At best that leaves an anomaly; at worst it provides a way of fast-tracking the definitive map procedure by doing something unlawful. That is quite the wrong message to send out. I support the noble Lord. We really must seek to ensure that the definitive map is truly conclusive.

6.45 p.m.

Lord Williamson of Horton: My Lords, I consider Amendments Nos. 193A and 194 among my favourite amendments to the Bill. This is for two reasons: first, although they deal with it in different ways, they deal with a real problem; and, secondly, I raised the point at an earlier stage and I have therefore convinced myself that I have had a tiny influence on the final result of the Bill, which is encouraging from a personal point of view.

Turning to the substance of the matter, Amendment No. 194, which has been brought forward by the noble Lord, Lord Whitty, is a definite improvement in comparison with the present situation. At the moment, as we know, it is possible for people to ride motor bikes or drive vehicles on bridleways; for them to be taken to court; and for them to be acquitted because of the terms of the Road Traffic Act 1988. I think it is common ground that the current text is not satisfactory and does not achieve what we wanted

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from that Act. The government amendment makes it far more likely that attempts by defendants to muddy the water in such cases will be less successful because the text refers to the fact that the contrary must be proved. That is better than the present text. It is a step forward and I welcome it.

I turn now to Amendment No. 193A, which has been brought forward by the noble Lord, Lord Williams of Elvel. On an earlier occasion, I was among the few who said--now I have very large support--that the more radical solution would be to make the definitive map conclusive in the context of proceedings. That means that the decision on such matters would be taken out of the hands of magistrates. Anyone who was totally dissatisfied with that would have one redress--to invoke a modification order and to go through the enormous procedure of trying to change the status of a bridleway. That is what I said on a previous occasion; I maintain the view that that is the better approach. It is clearer and it corresponds best to what we are seeking to achieve--namely, that bridleways should not be converted accidentally into ways on which motor vehicles can be driven.

I support the amendment brought forward by the noble Lord, Lord Williams of Elvel. While recognising that the government amendment is also an improvement, I think the simplest approach is presented in Amendment No. 193A.


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