Natural Environment & Rural Communities |
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Mr. Paice: Will the Minister give way? Jim Knight: I will give way in a second, but I just want to clarify something. I have heard from various hon. Members that they would like me to publish the legal advice and I am happy to publish the summary of that advice. I listened to the comments of my hon. Friend the Member for Sherwood very carefully. They were delivered very clearly, there was little room for misinterpretation of what he said, and I am grateful to him for that. If he can produce counter legal advice, once he has the chance to consider what I can publish, I shall certainly consider it. I give him that reassurance. I shall consider what we are doing in the legislation in the context of anything that he can produce. Mr. Paice: I am grateful to the Minister for giving way. I am puzzled about his remarks that subsection (3) does not address the problem, and his view that somehow the human rights of public users are being affected—if I understood him correctly. As a layman, it seems to me that the phrase
Column Number: 276 in subsection(3)(a) means that anybody who needs to go along that route to access property along it is able to do so. I cannot see how their human rights are affected by my amendments or by the gist of the debate. Jim Knight: Subsection (3) works. That is why it has been included. A private right will be gained under the Bill, but what may be lost, and what people need to be able to have the opportunity to demonstrate, is the public right. That public right may be of some value to their property. In order to satisfy the obligations that we have in respect of the rights of those property owners—the people who have an interest in that land—we need to give them a reasonable opportunity to register that public right before they acquire the private right that we have included in the Bill. Mr. Paice: I know that the Minister is trying to clarify matters, but can he give an example of what he is talking about? Subsection (3)(b) refers to
If a landowner or a property owner has a reason for the public to visit him and to have access along the road—say he has a farm shop or something like that—surely that is covered by subsection (3)(b), which refers to lawful visitors. If the people concerned are not lawful visitors, clearly we do not want them to have rights. Can he give an example of the sort of loss of public access that will affect a private owner? Jim Knight: While I am commenting on the other things that I have to talk about, I will reflect on whether such an example might be forthcoming. With the good use of in-flight refuelling, I may be able to come up with such an example. [Interruption.] On reflection, an example has suddenly emerged in my mind. Access may currently apply to one property, but in the future the property owner may wish to develop and build a number of other dwellings on that land. The reserved private right may then not exist, so they may want to safeguard the future value of their property by asserting a public right. Paddy Tipping: I look forward to seeing the legal advice, rather than relying on in-flight refuelling. In the example that the Minister has given, access could probably be established through civil mechanisms. I am not persuaded at this stage by that example. Jim Knight: As ever, I am grateful to my hon. Friend for the clarity with which he expresses his view. It is always helpful to me to understand his current thinking. He should also reflect, as I will—perhaps when we think about this issue later—on the fact that there are also certain advantages to public rights. They can be re-routed. That is more straightforward than for private rights. So, where were we? I recognise that there is considerable concern about what will happen to applications received up to the commencement of the new legislation. Various assertions have been made, based on surveys by both the Government and campaigners, about the level of applications being received by local authorities. DEFRA carried out a
Paddy Tipping: I am delighted with that answer because it suggests that there has been a surge of applications, which Ministers and officials have tended to deny in the past. I think that the score is 1-0 at the moment. 2.30 pmJim Knight: I am trying to suggest, with the appropriate degree of ministerial caution, that we are, to some extent, on the same side. I am pleased that we have some agreement on the matter. What we perhaps do not agree on are the projections for likely claims. I am keen for officials to pursue the matter to seek agreement. I do not necessarily disagree, but I cannot say that there will be 1,300 more claims in Wiltshire because that is a projection and I cannot deal with projections in that way. Ultimately, I must work on the basis of evidence. Mr. Robert Goodwill (Scarborough and Whitby) (Con): I am sure that we have all been guilty at some time of shutting the stable door after the horse has bolted, but if someone gives two years’ notice of when the door is likely to be closed, there is unlikely to be a single horse left in the stable. There are plenty of precedents for retrospective legislation, including the end-of-life vehicle directive—I was involved in the drafting of that—and the waste electronics directive. That legislation was obviously retrospective and was not challenged in the courts, despite a lot of sabre rattling about it being challenged. Jim Knight: I shall come to retrospective legislation in a moment. It is clear from surveys that there have been notable increases in the number of claims, particularly in some counties. There is no dispute about there being hot spots, and Wiltshire, Somerset, Derbyshire, Hampshire come to mind, as well as the area outside the back door of my hon. Friend the Member for Bassetlaw. I am working on the basis that we will commence one year after Royal Assent. However, I made it clear on Second Reading that, as the problem becomes more widespread, it will alter the balance and I will seek greater flexibility in the timing of commencement. The Committee may have noticed that I have tabled amendment No. 157 to clause 97, which will provide the option to commence clause 62 on a regional basis. That will allow us to focus commencement on the most vulnerable areas of the country that are experiencing heightened claims. If particularly active groups are pursuing particularly vexatious claims, an option that will allow me to work with responsible elements will be to commence in some areas before others. Column Number: 278 Paddy Tipping: The Minister is doing very well. He has provided the legal advice and he has confirmed that there has been a surge of claims, but he disappoints the Committee when he says that commencement will be one year after Royal Assent. Can I put it this way? If, as a result of any counter legal advice he receives and subsequent discussions, a way through this alleged human rights issue can be found, will he reconsider the commencement date? Jim Knight: I certainly give that assurance. I am considering carefully whether I have more room for manoeuvre than one year. I am optimistic that I may be able to do better than that. I will keep in touch with my hon. Friend and the Committee about that. I also accept that the period needs to be proactively managed by the Government. We need a system to manage what happens between now and commencement. I have met the main motorised user groups and industry representatives and have made it clear to them that there is evidence of a widespread flood of applications and that I will implement the legislation at the earliest opportunity, which may be less than a year after Royal Assent. I am not insisting, as some people have said in this debate, on a long commencement date. I am looking for a solution that works, which is what we are all after. Mr. Paice: I am grateful for that and appreciate the Minister’s sincerity, although I come back to my doubts about his caution. If we take 19 May, the date of the Bill’s publication, as a sensible date for discussion, is there any mechanism to stop councils just shelving all the applications that they receive between that date and commencement? That would be an option for getting round the fact that commencement is several months away. It will not be before Royal Assent, and there is the recess to come. We need a way to ensure that all the applications that are in the pipeline do not simply go through. Jim Knight: Let me directly address the retrospective legislation question, as the hon. Gentleman rightly prompts me to do. I am aware that some authorities are struggling under the weight of applications, and I would be happy to hear from them if there are particular ways in which I might be able to help them. The presumption against making retrospective law is well known. Used in the wrong way, such law can be unfair, especially if people have been carrying out their business in the expectation that they will be given proper notice before a change in the status quo takes place. I agree with the general principle and believe that most members of the Committee do so as well. I have no hesitation in defending it in normal circumstances. John Mann: Is there any reason why the retrospective issue cannot be sidelined by the use of traffic regulation orders? They are cumbersome but, in fact, give more powers in that they make an assertive restriction and the police feel more obliged to police a
Jim Knight: I am not aware of any reason why a local authority, once it has gone through the proper process, should not apply a TRO wherever it sees fit. If an application for a place caused the authority some concern and it saw fit and had gone through the proper process, I am sure that it could issue a TRO. John Mann: I understand that what happens in Hampshire is that a pre-emptive TRO to an upgraded RUPP—or one in the process of being upgraded—is made in advance; in other words, before the rights have been upgraded, they have been downgraded with a specific restriction that can then be policed. If used in Nottingham, such a TRO would solve the problem and bypass the issue of retrospective law. Jim Knight: I bow to my hon. Friend’s research. I am not aware of the example in Hampshire but hope that I soon will be. I shall return to my point on retrospective legislation. A presumption against making retrospective law can, of course, be rebutted. It is well established that this Parliament can make retrospective law in appropriate circumstances. To some extent, the hon. Member for Scarborough and Whitby (Mr. Goodwill) dealt with that point. For example, it will not have escaped Members’ attention that the Commons Bill, which was introduced in another place on Tuesday and for which I am the Bill Minister, contains retrospective provisions to prevent the severance of common rights. I am sure that all members of the Committee have read that Bill and noticed that. However, the circumstances in the Commons Bill justify a retrospective provision, and I shall set out a strong case for it before the House later in the Session. I look forward to debating it. There is wide public interest in maintaining a traditional system of common land in this country. I do not believe, however, that the retrospective provisions in the amendments can be justified. I have discussed how clause 62, as it stands, could affect the rights of many people who have a genuine interest in maintaining motorised access to their property. They need to be given a reasonable opportunity to preserve the current public access arrangements on which they rely. If my hon. Friend the Member for Sherwood or others can furnish alternative legal advice to dispute that, I will be interested. I do not underestimate the problems and nuisance caused by the bikers and by the 4x4 drivers. However, I do not believe that the problems are large enough to justify the use of retrospective law—and I do not know that we can get away with it. That is the bottom line. I am not sure that the courts would think that those problems were large enough. I want the provision to be watertight so that we can deal with the problems affecting the many legitimate users of rights of way about whom many Members
Mr. Breed: We all understand the difficulties that the Minister faces. We want to get the legislation right and watertight for the future. However, he is effectively saying, in answer to the hon. Member for South-East Cambridgeshire, that it will be up to the local authorities to try to work a way round the problem. Goodness knows how many applications will be sent to the local government ombudsman because those matters have not been determined. It may be subjected to all sorts of additional work, because I suspect that many local authorities sympathise with what we want to do and want to protect the current situation from any of those applications. Local authorities will be placed in the invidious situation of trying to manage a situation over which they have no real control. They shall look to central Government to assist them but, at the end of the day, the Government will leave them to try to sort it out one way or another, and local people will rail against their local authorities for allowing the situation to occur, notwithstanding the fact that legislation is going through. The provisions are very harsh on local authorities. Jim Knight: It is a difficult situation. I want to end the abuse of the countryside by irresponsible drivers and riders of mechanically propelled vehicles, about which we have talked. I want therefore to extinguish the historical rights about which we all agree. I want to do that in as practical and pragmatic a way as I can, so that the process works. When we have completed it, we will still find ourselves with some problems, because those rights will have been successfully asserted. Local authorities will then have the power, and they will have the responsibility to consider the use of those powers to resolve those problems locally. Ms Smith: I am absolutely certain that most local authorities facing this situation will find it difficult to respond with the restricted resources available to them, particularly if up to 50 per cent. of claims are successful in, for example, Derbyshire. Given that local government always have to prioritise their areas of work, as indeed central Government do, it is likely in the grand scheme of things that traffic regulation orders for successful claims will come fairly low down on the order of priorities in the highway authorities. Jim Knight: My hon. Friend makes a good point. To some extent, her point can be answered only by the issues of democratic accountability under which those local authorities work. It will be up to representatives to listen to their electorate to see whether the issue is a priority. We will come on to discuss whether national park authorities should have traffic regulation order powers, and, as I shall make clear, I have some sympathy with that idea, because those authorities may have different priorities from local authorities, particularly when it comes to preserving our most precious environments. Column Number: 281 There is now an opportunity for those motorised user groups to show that they shall be responsible and submit only those claims for sustainable routes. To that end, I am reconvening the Department’s time-limited motorised advisory group to work on a voluntary protocol for submitting claims. The protocol will be applied to claims from those groups or their members between now and commencement, and it will be subjected to wider consideration by the rights of way review committee to ensure that there is consensus about the criteria that are to be supplied to assess sustainability. Let us first try managing the situation rather than acting on projections about further possible claims to which I cannot attach evidence. At this stage, nothing is lost by seeking an approach to engaging motorised users constructively, but I repeat that I reserve the right to commence as quickly as possible if that constructive approach does not work. 2.45 pmMr. Herbert rose— Jim Knight: I apologise to the hon. Member for Arundel and South Downs (Mr. Herbert). I meant to say to him that appeals on applications lodged before the commencement of the legislation will be dealt with under the current system. To do otherwise would introduce retrospectivity. I hope that that is clear. On that basis, I hope that the hon. Member will consider supporting my approach at this stage and withdraw the amendment. Mr. Paice: As the Minister said, it has been a useful debate. Unsurprisingly, Members have been almost unanimous in their approach to the issue. I am grateful to the hon. Member for Sherwood for his robust support of the arguments that I laid out. It was unusual for him to suggest that I was taking the soft approach and he was taking the harsh one. Not for the first time, we find ourselves speaking the same language on countryside issues. It is clear that the Minister has taken on board the sincerity with which hon. Members of all parties have spoken in the Committee today and in the House on Second Reading. To a degree, I accept his words about retrospectivity. I always knew that my amendments suggesting three different retrospective dates were unlikely to be successful, but they were the basis on which we have had this debate. However, I do not believe that the Minister will find the way through that he is expecting. He will have to return at a later stage with a commencement date. As he knows, I have been a Minister. I am conscious of how a Minister receives advice and that caution is always the watchword for what Ministers do and commit themselves to. That is inevitable, given the source of the advice. However, there is a political imperative in this case to get the problem resolved quickly. Therefore, to give a year from the date of enactment to commencement is far too long. I simply do not understand how the legal advice could justify that. I look forward to studying it and, like the hon. Member for Sherwood, will obtain other advice when
Before I conclude, let me return briefly to amendment No. 71, which was my proposal for dealing with the interim stage. The Minister rejected it on the basis that it would be wide open to legal challenge on the grounds of objectivity. Local authorities would decline to register a right of way on the basis that it would be detrimental to the natural environment or to the interests of other permitted users but it might not really be so, and they could be challenged on their decision. Of course that could happen, but, although I am not wedded to my words—that is a phrase that I have used many times and will use again during the Committee proceedings—I cannot help believing that the amendment is the right way forward. It would bring into the frame all the other factors in respect of vehicular rights of way that we have agreed are important and need to be considered, other than the fact that the Romans ran their chariots up and down a road. The impact on the natural environment and other users is important. I would have thought that using my approach, if not my words, would not be as open to challenge as the Minister seems to believe. Of course, anything is open to challenge, but I urge him to reconsider the idea. I am glad that the Minister has accepted following his latest survey that there is the surge and that we have a serious problem. Although the Minister may come to some mutual arrangement with local authorities for the future, there are already a large number of applications sitting on council desks pending a decision. We can argue about the figures. Those cases need to be resolved. I appreciate the support that I have had from Members on both sides of the Committee for the gist of the amendments and the approach that we have taken. I appreciate the Minister’s response, his sincere understanding of the problem and his desire to resolve it. I urge him to be robust and to challenge caution, because we all demand something more positive and urgent than that. However, in the hope that he will do so, and conscious that there are other stages of the Bill at which the issue can be considered again, at this point I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 62 ordered to stand part of the Bill. Clause 63 Supplementary Mr. Williams: I beg to move amendment No. 107, in clause 63, page 25, line 24, at end add—
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I am comforted by a fact that may reassure the hon. Member for Sheffield, Hillsborough (Ms Smith)—the amendment has the support of the Council for National Parks. As the Minister said that he has some sympathy with the amendment, I am persuaded to pursue it. Many will know that national parks have the duty to conserve both the natural environment and the built environment. Some of our most ancient rights of way bring those two issues together. An example in the Brecon Beacons national park is known as the Gap road. Sadly, the hon. Member for Bassetlaw has left the debate. Some of the Romans heading for Scotland, obviously deterred by the river Trent, must have turned left and sought to enter Wales. To cross the Brecon Beacons, those Romans built a road that is now known as the Gap road. As the Romans were a little more canny than modern road builders, they built the road on the side of the Brecon Beacons that is less affected by snow. So, while the A470 is sometimes completely blocked by snow, the Gap road is left open. The Gap road started to be used by motor cyclists and 4x4 drivers. It is not just a right of way but an ancient monument, because it has retained some of the structures that the Romans put there. Although we can restore rights of way, we cannot replace ancient monuments. So it seemed to us that it was important that we conserve it. That is an example of how rights of way that are important, and other rights of way, can be conserved by traffic regulation orders. It seems appropriate that national parks be given the powers of highways authorities to conserve rights of way. The amendment would limit those powers to unsealed rights of way that are not covered by concrete, asphalt or tarmac. So there is a limit. It would give national parks the right to make TROs not on roads that are used for general transport purposes but, mainly, on roads that are used for recreation. I was chairman of the Brecon Beacons national park when we put forward the TRO for the Gap road. Everybody whom I consulted opposed that order. The police said that they could not enforce it. Motorcyclists and 4x4 drivers said that it was a huge restriction of their rights and freedoms. Conservationists said that the road, use of which the order would have limited to periods when vehicular use would not do it damage, should be closed altogether. The county council said that the order was a waste of money. Everyone opposed it, but eventually we drove it through—I am sorry to use that phrase—and it has proved to be successful. Not only does it provide the opportunity for people to enjoy that right of way when conditions are appropriate but it conserves the right of way, which is important. I believe that the national parks would use the measure responsibly and the example of the Gap road proves that. After the then Minister of State at the Department for Environment, Food and Rural Affairs, the right hon. Member for Cardiff, South and
I believe that this power would enhance national parks and that it would be used responsibly. I support it. Jim Knight: I recognise that traffic regulation orders can play an important role in the management of vehicles in national parks and the achievement of national park purposes. Authorities need tools to achieve those purposes and to manage vehicles in parks. Statutory provision exists for local highway authorities to delegate their functions to national parks by agreement, and I understand that Dartmoor national park authority already has delegated traffic regulation order-making powers over public rights of way. I consider that the amendment would not define clearly enough the scope of the regulation-making power. For example, I know from experience that some tracks are for the most part unsealed but for short stretches of 5 m or so may have more robust surfacing. It would be difficult to ascertain whether such a route fell within the amendment’s definition of unsealed when it clearly should. An alternative way forward would be a consensual one in which national park authorities agreed delegation arrangements with local highways authorities. However, I recognise the clarity and certainty that might be afforded by providing statutory order powers direct to national park authorities and, with that in mind, I am prepared to consider the matter further and to consult with colleagues in other Departments. On that basis, I hope that the hon. Gentleman will withdraw his amendment. |
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