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Amendment No. 33, which would delete clause 10(2), is primarily a probing amendment. I am not sure what people could do to show what they had done to ensure compliance with the notice, bearing in mind all the previous stages involved. If I am satisfied that there is a valid defence, I will listen to the arguments; but I am not sure that that is the case. I do not accept what the right hon. Member for Bromley and Chislehurst said in support of amendment No. 102, which would drive a coach and horses through the enforcement provisions. In fact, its wording does not tally with clause 10(3), the inference of which is that the individual was not sent a copy of the notice in the first place. The right hon. Gentleman wishes to tack his additional defence on to that.
Suppose that someone is away when the notice is served, but comes back the next day. Suddenly finding a notice requiring compliance, he decides to go away for three months so that he is absent for the compliance period. Under the right hon. Gentleman's proposal, he would have a double defence; he was not present when the notice was served--even though he was at home the next day--and, having had notice of the notice, he could provide a defence by absenting himself for all or part of the compliance period. Even if he went to Paris for a day
May I briefly make the same point in relation to powers of entry in the notice period? By that stage, the offender has had every opportunity to comply with the law and reach agreement with his neighbours through mediation, yet he is still flagrantly disregarding the law. In those circumstances, a seven-day notice is reasonable. The offender can expect a notice as he knows what the provisions are. All he has to do to avoid powers of entry is comply with the legal order to lower the hedge.
Mr. Forth: What if the person is genuinely unable to do so? What if he is indisposed and what happens if a problem arises that takes him away or makes him unable to cut the hedge? What happens if he is financially unable to cut it? You will know more about this than anyone else present, Mr. Deputy Speaker; what if the hedge or tree is extremely tall and contractors need to be brought in to ensure compliance, but the person simply does not have the money to pay them? I can imagine a number of circumstances in which it would be difficult to comply, even at that stage.
Mr. Dismore: By that stage, non-compliance will have lasted many months. The Bill provides a certain period for mediation, negotiation, discussion and compliance. As that process lasts for many months, the right hon. Gentleman's point is not valid. In any event, clause 11(1)(a) provides for
Mr. Chope: Amendment No. 49 is prompted by my concerns about the interaction of clauses 10 and 11. I know that certain Government Members want, with tremendous enthusiasm, to criminalise as much human behaviour as possible.
Clause 11 sets out some perfectly reasonable things that the local authority should do if, at the end of the compliance period, there has not been compliance with the remedial notice. It gives powers to local authorities to intervene in quite a drastic way, but in my view in quite a reasonable way if they have been faced with the contempt that would have been displayed by the owner of the offending hedge in refusing to do anything at an earlier stage of the proceedings.
I am concerned that clause 11 takes second place to clause 10. In practice, it is unlikely that local authorities will wish to become involved in taking remedial action. Unless authorities ensure enforcement and eliminate the mischief, there will not be the relief for the aggrieved occupier or tenant that the Bill is designed to deliver.
Prosecuting under clause 10 will not achieve anything, and might create high-hedge martyrs, in the same way as we have seen metric martyrs, created directly as a result of the insensitive exercise of local authority discretion in relation to prosecutions.
It is much better that the local authority should resort to the powers that are provided in clause 11 before any prosecution is sought under clause 10. If that course is taken, any costs incurred or any apology that may have been given by the person who had been at fault under the provisions in clause 11 could be taken into account under clause 10 in any argument about mitigation of penalty.
I fear that we shall find in practice that local authorities will be reluctant to exercise their powers under clause 11 and will go for the more draconian route of prosecuting under clause 10. Prosecuting for criminal offences arising out of civil problems should be a last resort. The Bill does not make that clear. That is why the amendment would add a new subsection to clause 10, which would state:
It is a simple and straightforward point and I have been able to explain it in a relatively few minutes. I hope that my hon. Friend the Member for Solihull (Mr. Taylor) will be as flexible in responding to the amendment as he was in responding to my new clause 10, which I am delighted to know is now incorporated in the Bill.
Mr. John M. Taylor: My hon. Friend has discovered that I am a flexible man. I have tried to be as flexible as I possibly can be in considering the new clause and the amendments. However, I think that they are horrible, and I shall resist them with all my power.
In addition to being an extremely flexible man, I am also prescient. I have powers of seeing into the future. I am aware that in resisting the new clause and the amendments, I am effectively bringing these proceedings to a close. I hope, therefore, that it is not too self-indulgent if I thank, in no particular order, the Minister, Clare Hinchliffe of Hedgeline, the hon. Member for Coventry, South (Mr. Cunningham), who has been consistently helpful to me throughout the proceedings, and--if it is not completely out of order to say such things--the officials at the Department, who have been unfailingly helpful and courteous to me.
The experience has been interesting. I have enjoyed the jousts with my hon. Friend the Member for Christchurch (Mr. Chope) and my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth). It was always clear that I would not secure the Bill today. May I say, in a spirit of fair play, that I understand the motivations of my hon. Friend and my right hon. Friend, who have provided many amendments and--I hope that they will not mind my saying so--much resistance. I understand that their opposition is principled. They will understand that I have not much enjoyed it; I would like to have got the measure to the statute book.
I hope that there is a wider audience. Perhaps there are those who are putting the finishing touches to manifestos who will identify with my aims. Even though my right hon. and hon. Friends found fault with certain passages in the Bill, there is a principle to be addressed. There are people out there whose lives are being made a misery by
There must be some remedy. My right hon. Friend the Member for Bromley and Chislehurst drew attention to the fact that I am a lawyer. Once a lawyer, always a lawyer, I suppose. I am confident that the English law of nuisance or any extension of that law is not the right remedy. It is a morass and it is hideously expensive. I have a constituent who sought to litigate, and it cost him £24,000 of his own money against a legally aided opponent. That may not be directly relevant to the present debate, but it is nevertheless a significant problem.