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Earl Peel: My Lords, I support the noble Lord, Lord Williams, on this occasion. It gives me great pleasure to do so. I was interested in what was said by the noble Baroness, Lady Scott, because it concurred very much with what the noble Lord, Lord Williams, said. I have taken some independent advice. I am delighted to say that the advice I have been given concurs exactly with what the noble Baroness and the noble Lord have said. I can only assume that it must be spot on.
Like other noble Lords, I welcome the government amendment. However, I do not think that it goes far enough to deal with the problem. As the noble Lord, Lord Williams, said, the magistrates simply would not be able to cope. They have not got the expertise to do so. Although cases may come before them, there is no guarantee of a satisfactory outcome. Under the noble Lord's amendment, the onus would be on those wishing to take vehicles on such routes to try to get the definitive map changed. That is a much tougher requirement. In view of the enormous difficulties that we are facing up and down the country, I think that the noble Lord's amendment is the one we should accept.
Lord Whitty: My Lords, perhaps I may deal briefly with Amendment No. 264 in this group, standing in the name of my noble friend Lord Williams--I shall deal with it first because it is the easy one! I agree with my noble friend that the provisions in Part II of the Bill that do not take effect automatically two months after enactment should be brought into effect as rapidly as possible. We have in mind the early part of 2002-03. I am not in a position to make a firm commitment at this stage. There are some 40 regulation-making powers in relation to Part II which must all be in place before the full enactment of the legislation can take place. I hope that the fact that I agree with him reassures my noble friend sufficiently that this will be done as rapidly as possible, subject to parliamentary procedures where they are required. I hope that that satisfies my noble friend in relation to Amendment No. 264.
My noble friend and others have spelt out the meaning of the government amendments, to which I shall return in a moment. It may be sensible to give a little of the background first. Amendments Nos. 193A and 194 relate to the Bill's cross-reference to the Road Traffic Act 1988. The Bill amends Section 34 of the Act to create a presumption that where a way is shown in a definitive map as a footpath, bridleway or restricted byway, it is to be treated as being a way of the type shown. So it would be shown as a footpath, bridleway or whatever, and would be presumed to carry only that right of way.
But the point here is that a presumption is not conclusive. If we had a conclusive definitive map, clearly the approach taken by the noble Lord in his amendments would apply. Nevertheless, in some cases we are giving 25 years to enable any objections to be settled--in other words, for the conclusive map to be established.
In the interim, there is clearly a problem in that what appears on a definitive map may not be conclusive. In other words, it may be challengeable. Up to now, the principal concerns expressed in this House have related to the requirement that the defence against being accused of using a vehicle on a right of way which did not allow vehicular traffic was simply to produce prima-facie evidence of vehicular rights. Our amendment recognises that that is not enough and that there has to be a significantly greater burden of proof. Our Amendment No. 194 would require the same level of evidence as, for example, an order modifying a definitive map so that a way would be shown as a footpath, bridleway or restricted by-way as required. In other words, in order to defend a position under the presumptive position, the same level of proof would be required as would be required to change that presumptive position. That is the highest evidential burden placed on the defendant in criminal proceedings. Therefore, the burden of proof set out in Amendment No. 194 is substantial.
One has to cater for the fact that a vehicle user might have proof of a pre-existing vehicular right. My noble friend claimed that Amendment No. 193A would simply put motor vehicle users on the same basis as walkers and horse riders. But that is not the case. A walker may walk on a footpath which is not shown on a definitive map; a horse rider may ride on a way that is shown as a footpath if there are bridleway rights over it; and, if sued for trespass, a walker would be able to put evidence that a way was a footpath and sustain that evidence in court.
In relation to the motorist, Amendment No. 193A would prevent a motorist putting evidence to the court that there was a pre-existing right of way. In other words, the motorist would be treated as being in a less favourable position than a walker or a horse rider accused of inappropriately claiming a right of way when one did not exist. It is difficult for me to accept Amendment No. 193A because it goes much further than we would go in preventing a motorist claiming before a court that using a vehicle on a particular right of way reflected pre-existing vehicular rights.
My noble friend refers also to the role of the magistrates' courts; and the noble Baroness, Lady Scott, raised queries as to the appropriateness of the magistrates' courts in this respect. As I believe my noble friend himself said, the magistrates' court would not by its decision be establishing the status of a right of way. The court would simply be, on a case by case basis, establishing the balance of probabilities. I agree in one sense that where there is a whole range of these decisions, the Highways Authority might wish to take them into account. Nevertheless, there is no way in which a magistrates' court could definitively define a right of way in those terms.
The definitive maps to which we refer were not intended to prevent a motorist from being able to claim evidence of vehicular rights. The conclusive evidence of rights of way is not simply being able to point to a map and say that a way is so designated and that all other evidence is therefore irrelevant--which I think would be the effect of my noble friend's amendment.
There are other considerations in relation to this matter which we should have to take into account if we were tempted to go down the road that my noble friend has taken. Human rights issues could possibly be involved, because people rely on vehicular access to their homes or their businesses. Preventing the use of such rights, or making people liable to prosecution for using such rights simply by referring to the nature of the definitive map could seriously affect their access to and use of their property and the access of others who needed to reach their property. For example, a farmer might depend on public vehicular rights to drive agricultural machinery to part of his land, or he might want members of the public to be able to buy produce direct from the farm and so on. It is possible that he may have private rights of way; but he may not. Amendment No. 193A would make him potentially liable.
There is a great deal of obscurity regarding what exact rights exist. The noble Lord's amendment would take the overriding view that if a right of way was shown on a definitive map, that was the end of the story. I can see that there are enormous attractions in that. However, it does not address the real situation on the ground. It could affect the livelihoods and the reality of daily life of a large number of people who have farms or other premises which are accessible from those rights of way.
Having said all that, I recognise that there is real problem here. The Government have given a great deal of thought as to how Section 34 might be strengthened. We are satisfied, as we have indicated in tabling Amendment No. 194, that we need to increase the burden of proof. We are satisfied also that going as far as my noble friend's amendment would go would not be appropriate and that it would raise other issues.
Nonetheless, it is clear from my noble friend's argument and from the arguments of noble Lords on all sides of the House that there is considerable concern as to whether our Amendment No. 194 goes far enough. I believe that Amendment No. 194 establishes an important principle of the burden of proof and that we shall therefore wish to pursue Amendment No. 194 if Amendment No. 193A is not carried. However, I recognise that something more may be required. At this stage of the Bill, and given the complexity of the matter, I do not wish to mislead noble Lords. I can given no commitment that I shall be able to find a satisfactory way to resolve this very complex dilemma over the next six days. Nevertheless, I am prepared to indicate to my noble friend that I shall look into the matter to see whether something can be done.
From what I have said, it is clear that the matter is not all that straightforward. However, we recognise the concern. I believe that our Amendment No. 194 goes some significant way towards meeting that concern. If my noble friend can be persuaded to withdraw his amendment, we shall endeavour to find out between now and the next stage whether there is another way to deal with the situation that will not run into the kind of difficulties to which I believe his amendment would give rise. I shall move our amendment when we reach that stage.
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