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The Parliamentary Under-Secretary of State for the Environment, Transport and the Regions (Mr. Chris Mullin): The amendments deal with two separate issues, and I shall start with the issue of driving motorised vehicles on bridleways.
Amendments Nos. 304, 305 and 302 would affect schedule 7, especially the amendment to section 34 of the Road Traffic Act 1988, which would make it an offence to drive on land which does not form part of a road. In Committee, I explained that new subsection (2) of section 34, which was added by Government amendment in Committee, is designed to improve the enforcement of section 34 and address in particular the problem of large numbers of motor bike riders who believe that they may ride with impunity on bridleways and footpaths, regardless of whether there is any evidence of vehicular rights over them.
Amendments Nos. 304 and 305 would make the definitive map conclusive evidence of the rights shown on it alone. However, they could have the effect of making it no longer possible to record higher rights which may subsequently be discovered over a footpath, bridleway or, as the definition is amended by the Bill, a restricted byway. So, for example, if bridleway rights were shown to exist over a way shown on a definitive map as a footpath, it might not be possible to upgrade the footpath to a bridleway, and the outcome would be inaccurate maps.
The effect of amendments Nos. 303 and 45 would be that a person prosecuted for driving on a way shown on a definitive map as a bridleway, for example, would have to produce evidence of full vehicular rights on the basis of the balance of probabilities. That is a higher test than that which may be required to put a new right of way on a definitive map. Amendment No. 302 would make the definitive map conclusive for the purposes of a prosecution. However, the level of evidence required to put a new right of way on a definitive map is much lower than that required for a criminal prosecution.
In view of the concern expressed by a number of hon. Members that the Government amendment made in Committee did not go far enough, I agreed to consider this matter further. We are still considering it. A key question is whether a person should be deprived of exercising rights over a highway merely because those rights have not been recorded on a definitive map. It is not a constraint, for example, which applies to walkers or horse riders.
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I accept that Parliament has provided the definitive map process as a means of recording public rights of way,
and there are arguments that, in general, people should not try to bypass that process. In part, those arguments are reflected in the new subsection (2) in section 34 of the Road Traffic Act 1988, which removes the obligation on the prosecution to prove its case from the very beginning. Instead, the defendant has to produce prima facie evidence as to possible vehicular rights. If he cannot, the prosecution is not obliged to prove that vehicular rights do not exist. We need to think carefully about the implications of going beyond that. It is right that Governments should be cautious before deviating from the general principle of criminal law that the prosecution should prove its case beyond reasonable doubt.I am afraid that I cannot say more than that today. I repeat that we are considering the matter, but I cannot give any commitment that we will introduce amendments at a later date, although I acknowledge the problem. As my hon. Friend the Member for Denton and Reddish (Mr. Bennett) and my right hon. Friend the Member for South Shields (Dr. Clark) have said, we have recently been in discussions with the Lake district national park authority about the difficulties. I am sorry that I cannot go further today.
Amendments Nos. 135 and 136 relate to the problems of common land, which were clearly outlined by the right hon. Member for North-West Hampshire (Sir G. Young). I do not resile from the statement that I made in an Adjournment debate a while ago. The situation that he described, and the situation elsewhere, as described by other hon. Members, is outrageous. I am afraid to say that they are not the only examples of such spivvery that I have come across. Many of my constituents have started receiving large bills from companies, usually based in the south of England, that have bought the freehold at an auction somewhere. The bills are not for the freehold money, which would be a small sum, but for retrospective consent for putting in a sliding door, making some minor extension to the house or putting up a conservatory. My constituents face exactly the same kind of blackmail. That is another problem that needs to be resolved. I mention it to show that the problem is not confined to the constituencies that Conservative Members represent. Such behaviour is, unhappily, all too common in this day and age.
The right hon. Member for North-West Hampshire described very fairly the efforts that I made to assist with the problem at Newtown, but he missed out one stage. I went one stage further than he said, and arranged a meeting with Mr. Farrow of Bakewell Management and pressed on him the need to reach a reasonable settlement with the right hon. Gentleman's constituent. We should not get involved in the details of the negotiation here, but from that meeting, rightly or wrongly, I formed the view that some form of compromise acceptable to most of those involved might be achievable.
At the time of the debate, the right hon. Gentleman described me as a hero. I never allowed that to go to my head, because I am aware that the line between being a hero and being a traitor to the people is wafer-thin, and one can stray across it at any moment. It may well be that in the light of my response I shall have strayed across it by the end of this debate. The difficulty with introducing legislation that meets all the different circumstances affecting commons is that there are many different sets of circumstances. Other hon. Members have described how in some cases the National Trust was the landlord; in other
cases Surrey county council was the landlord. As the hon. Member for Guildford (Mr. St. Aubyn) said, Surrey county council has behaved very responsibly, as does the National Trust. It is therefore quite difficult--desirable though it is--to come up with a solution that meets all possibilities.I turn in detail to amendments Nos. 135 and 136. The unfortunate situation has arisen because driving on common land can be a criminal offence. That has been so on some commons since as long ago as 1926. Rights of vehicular access through long use can be acquired only where no criminal offence is committed. For some reason that I cannot explain--there are a number of such aspects--that often seems to have been overlooked when a house with access over a common was built or sold and the deeds made no mention of access rights. I think that I am right in saying that in no single case in Newtown did lawyers discover such rights when houses were sold.
As a result, a number of people whose sole means of vehicular access is over common land owned by someone else have no legal right to use the access. Recent court cases have highlighted that problem, and drawn attention to the value of vehicular access in today's context and the high charges that can be made for acquiring such access.
When the issue was raised in the House last year, I undertook to investigate the situation and to see whether Government action would be appropriate. With officials in my Department, I have gone over a number of options for overcoming the problem. Our objective was--and, indeed, remains--to try to find a way to ensure that the charges made by landowners for easements are reasonable. However, we have so far concluded that none of the options is straightforward, and that they are all likely to have serious implications elsewhere.
The principal effect of amendments Nos. 135 and 136 would be to make it lawful to drive over common land to access a dwellinghouse--and not only that: amendment No.135 states that it has always been lawful to do so, and amendment No. 136 would make the activity lawful, in certain circumstances, over at least the past 20 years. As it is currently a criminal offence to drive on common land without the owner's permission, I am not clear what the amendments' effect might be on someone who was convicted in the past. What would happen to their conviction? Similarly, could action be taken against a landowner who had, quite lawfully at the time, denied access? [Interruption.] I am sharing with the House the advice that I have been offered.
There is one quite serious general point. The right hon. Member for North-West Hampshire spent longer in government than I spent in opposition, and he will know that Governments do not lightly engage in retrospective legislation. I do not say that that is the end of the matter, but his amendments do not overcome that problem, whatever he thinks about the points that I raised a moment ago.
Mr. Hogg: I shall make two points to the Minister. First, the legal advice that he is receiving about previous actions or convictions can be met simply by stating in the Bill that any amendment such as amendment No. 135 does not affect the validity of actions taken under the old law. That can be stated in statute. Secondly, when he is reviewing the matter, I hope that he will not confine himself to dwellinghouses. I make the same point to him
as I made to my right hon. Friend the Member for North-West Hampshire (Sir G. Young) with regard to the rights of access to other land: agricultural holdings, commercial property, horticultural holdings and so forth are just the same for such purposes.
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