Standing Committee F
Thursday 11 March 2004
[Mr. Peter Pike in the Chair]
Liability of officers etc. for
obstruction by body corporate
Question proposed, That the clause stand part of the Bill.
Mr. Michael Jabez Foster (Hastings and Rye) (Lab): May I extend my thanks to right hon. and hon. Members who have agreed to take part in consideration in Committee of this important Bill? I also crave your indulgence, Mr. Pike, as I wish to say a few words about the principle of the Bill. This is one of those cases in which a Second Reading speech was written but not given. Therefore, it should not be wasted, although I will be brief as this is a brief Bill, albeit with a reasonably important purpose.
The Bill is designed to amend the Highways Act 1980 by applying section 314 of that Act to the offences involved in wilfully obstructing a highway, under section 137 of the Act, and of failing to comply with a court order requiring removal of the obstruction, under section 137ZA, a provision that was added later. If enacted, the Bill will enable proceedings to be taken and, most importantly, enforced against officers of a corporate body who are responsible for obstructing rights of way.
This is a short Bill, but it has a big purpose. It is designed to fulfil the objective of earlier legislation, which is to ensure that every citizen is free to use public rights of way without obstruction. In that context, a highway means a right of way over which the public have a right: footpaths, bridleways, byways and so on, as well as ordinary roads, of course.
Why is the Bill necessary? During the 1990s, Kate Ashbrook, a woman of some resolve, fought a campaign to ensure that a 140-year-old right of way in East Sussex was freed from obstruction. Significant publicity surrounded the case because the true ownership of the land, or certainly the control of it, was vested in one Nicholas van Hoogstraten. However, it is important to say that the Bill is not directed against an individual. Kate Ashbrook's campaign came to the attention of Parliament, which passed the Countryside and Rights of Way Act 2000. That Act contained a measure that amended the 1980 Act.
Mr. James Gray (North Wiltshire) (Con): I was hoping that the hon. Gentleman would give due credit to Mr. Jack Dunn, an 86-year-old, who brought the case in the first place and raised it with the Ramblers Association, which weighed in behind him. Mr. Dunn did a fine job in raising the matter.
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Mr. Foster: I certainly pay tribute not only to Kate Ashbrook, but to others who supported her campaign. Mr. Dunn should also take credit that the campaign came to the attention of Parliament.
Dr. Desmond Turner (Brighton, Kemptown) (Lab): I remind my hon. Friend of, and ask him to comment on, the woeful failure of East Sussex county council in respect of the right of way owned by Mr. van Hoogstraten. The council completely failed to carry out its duties as the highways authority.
Mr. Foster: My hon. Friend is right that Kate Ashbrook made enormous efforts to persuade the local authority to do what it could do. She certainly believed—I believe that others shared her view—that the authority was intimidated into doing less than perhaps it could have done. None the less, the authority was restricted in what it could do, because when proceedings were eventually brought, they were thwarted as a result of the lack of an ability to pursue individuals as well as the company.
The matter was brought to Parliament and the 2000 Act imposed new section 137ZA of the 1980 Act, which gave magistrates the power, when finding someone guilty of obstructing a highway under section 137, to order the removal of the obstruction by a certain date and/or to impose fines if the obstruction was not removed.
Importantly for Kate Ashbrook, the remedy was available against a body corporate as well as an individual. Unfortunately, it became obvious that in practice there was a loophole in the law. There was nothing to prevent a paper company from being created to have control over the land or parts of it—even quite a small sliver—over which the courts had no power to extract compliance or fines. That is indeed what happened. The company officers, who were in reality responsible, were able to hide behind the veil of incorporation, where they could not be held to account.
When Parliament speaks but its purpose is thwarted, we surely have an obligation to close that loophole, particularly when the issue affects so many of our countrymen. The statistics are clear; I will not go into them all, but rambling, or walking, is most important socially and economically in Great Britain. It is a pastime that has been engaged in by some 45 per cent. of people, I am told. Perhaps more of us should do so. The popularity of that activity is such that it is important that our countrymen and women have the opportunity to take advantage of it.
A more fundamental reason for giving our rights of way all the protection that they can get is that one of the fundamental tenets of a free society is that its citizens have the freedom to travel without restriction from one place to another. To block a highway with a menacing sign and a barricade is an oppression of that right. One might go as far as to say that it is a tyranny, and it should be curbed.
Clause 1(1) provides that section 314, which already applies personal liability to the officers of corporate bodies responsible for offences under other defined sections of the Act, should be extended similarly to
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apply personal liability to breaches of sections 137 and 137ZA to close the loophole.
The Minister for Rural Affairs and Local Environmental Quality (Alun Michael): First, may I say how pleased I am to be a member of this Committee under your chairmanship, Mr. Pike, brief as consideration in Committee will be? Although I know that you preside in the neutral persona of a member of the Chairmen's Panel this morning, may I acknowledge your long-standing chairmanship of the rights of way review committee? That committee has made a significant contribution to promoting understanding and clarity in the sometimes complicated legal framework for rights of way. The Government are grateful for the committee's continuing work on finding consensus wherever possible on the many proposals associated with implementing the 2000 Act.
There was not an opportunity to do so on Second Reading, so I congratulate my hon. Friend the Member for Hastings and Rye (Mr. Foster) on his success in the private Member's Bill ballot and thank him for taking forward this important Bill.
The clause applies section 314 of the 1980 Act to offences under sections 137 and 137ZA of that Act. Those offences concern, respectively, the wilful obstruction of a highway and the failure to comply with an order to remove an obstruction. My hon. Friend has already referred to a particular case about which many Members in all parts of the House expressed concern. It exposed a loophole in the law: by putting the land in question in the ownership of a shell company, it was possible to frustrate the intentions of the law, the efforts of the local authority and decisions of the magistrates on reopening an obstructed right of way. The matter was already a pretty ancient case of dispute when I took up my current responsibilities for rights of way. It was frustrating for anybody who cares about these issues that it appeared that there was no way to reach a conclusion.
The Bill will close the loophole to which my hon. Friend referred and enable local authorities to ensure that the intentions of Parliament can be enforced, although we will still require decisions and actions to be taken to bring issues before a magistrates court. As a Department, we seek to work with and encourage local authorities in the maintenance of the rights of way network. As my hon. Friend said, that network is enormously important to local economies in virtually every part of the country. It is also important to people in rural areas, because of its significance to the rural economy, and to those in the country and those in the town who enjoy using it.
Applying section 314 to these offences will ensure that where a body corporate commits an offence of wilfully obstructing a highway or of failing to comply with an order to remove an obstruction, and it is proved that the offence was committed with the consent, connivance or neglect of an officer of the body corporate, that officer may also be found guilty of that offence.
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The Bill's provisions will apply to offences committed under section 137, which covers wilful obstruction of a highway, and section 137ZA, which covers failure to comply with an order to remove an obstruction, after the commencement of the Bill, regardless of whether the order to remove the obstruction made under section 137ZA was made before or after commencement. I am happy to back the Bill and I hope that it receives support from both sides of the Committee.
Mr. Gray: I join the Minister in welcoming you, Mr. Pike, and I congratulate you on your work over the years on the important issue of rights of way. I am confident that your job will not be excessively difficult, because this is the third or fourth Committee in which I have found myself opposite the Minister and agreeing with most of what he has said. That is extremely worrying to admit, and I shall ensure that it does not carry on for too long. This may also undermine the Minister's political career, so we will not dwell on it.
I add my congratulations to the hon. Member for Hastings and Rye on having the initiative to introduce what is demonstrably a sensible and well thought out Bill. I am glad that the Bill received what was probably the shortest Second Reading in history and that my hon. Friends were happy to allow it to progress to this Committee.
Like the Minister, the Opposition are committed to finding every possible way of allowing all those who want to do so to enjoy the countryside, which Mr. van Hoogstraten, and perhaps others like him for all I know, were demonstrably failing to do. It was disgraceful that he chose to use a shell company to establish barriers and, at one stage, a barn to block off access to his land. It might have been much more sensible for him to take a positive approach and attempt to divert the right of way.
There is something to be said for that approach, and there are many instances of rights being changed. For example, just outside my constituency on the Wiltshire downs, a large number of rights of way have been sensibly diverted to paths that are much better for walkers. Many rights of way used to stop in the middle of fields, so diverting them can improve the rights of way network. Mr. van Hoogstraten chose not to do that, but to shelter behind a disgraceful loophole in the law. We should all decry that and welcome the thrust of the Bill in putting it right.
I have some questions for the Bill's promoter, and the Minister might also reply to them. I am slightly concerned about the effect that the Bill may have on charities or voluntary organisations, and we should be clear about the fact that there are no untoward or unintended consequences for either. I cannot imagine how there would be, but one or two interested parties have flagged up the possibility that there might be a problem. Will the hon. Member for Hastings and Rye clarify that point?
The general principle of retrospection is one that, on constitutional grounds, all members of the Committee would decry. We cannot introduce laws that are retroactive, so I hope that the hon. Gentleman
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confirms that there is no such intention, that previous breaches are in the past and that the Bill's purpose is to ensure that such breaches do not happen again.
That is an important point. To use an example that we have mentioned several times this morning, Mr. van Hoogstraten would not be prosecuted under the Bill unless he repeated the offence. I make that point not, I hasten to add, because I am in any way, shape or form an apologist for or defender of Mr. van Hoogstraten—quite the opposite, as he deserves all that is coming to him. Perhaps I should not have said that on the record—I claim privilege. I am not trying to defend his actions, but on the general principle we should make it plain that the Bill will not apply retroactively.