Schedule
3
Main
powers in relation to land of the
HCA
Mr.
Wright:
I beg to move amendment No. 18, in
schedule 3, page 129, line 24, after
HCA insert
if the Secretary
of State is satisfied that
(a) an
alternative right of way has been, or will be, provided,
or
(b) the provision of an
alternative right of way is not
required.
The
Chairman:
With this it will be convenient to discuss
Government amendment No.
19.
Mr.
Wright:
Broadly speaking, the procedure set out in
schedule 3 is not dissimilar to those found in other
pieces of legislation, and I draw to the
Committees attention the Regional Development Agencies Act
1998, the Highways Act 1980 and the Town and Country Planning Act
1990.
Unlike the
comparable powers in those pieces of legislation, in the Bill as
drafted, there is no mandatory requirement for the Secretary of State
to be satisfied either that an alternative right of way has been, or
will be, provided, or that an alternative right of way is not
necessary, although it is likely that those are matters to which it is
reasonable to expect the Secretary of State to have regard when
deciding whether or not to make the order. Including a requirement for
the Secretary of State to be satisfied that one of the matters outlined
above does in fact apply before making any order to extinguish a public
right of way would make the provision far fairer in terms of natural
justice and bring it into line with comparable legislative
provisions.
Government amendment No. 19
allows the Secretary of State to make an order to extinguish a public
right of way over any land of the agency, provided that the statutory
procedure is followed first. It is not necessary to exclude land held
by the HCA for its own administrative purposes from that power. For
example, the agency may take office space in a building that forms part
of a larger development for which it is necessary to extinguish a
public right of way. The amendment effectively brings the provision in
the Bill into line with the provisions that apply to the Urban
Regeneration Agency under the 1993 Act. Although I am reluctant to
mention it following our earlier discussion, the amendment has a
modernised
wording.
Alistair
Burt:
I appreciate the Ministers explanation, but
I wish to raise a couple of matters in relation to schedule 3, largely
on behalf of the Campaign to Protect Rural England. The Minister has
probably seen a couple of representations by the CPRE, which said in
written evidence to the
Committee:
We
are similarly concerned by provisions in the Bill that would give the
Secretary of State the power to extinguish public rights of way and
curtail further investigation, including a public
inquiry, if the Secretary of State considers he/she has
sufficient information (Schedule 3, Part 2). The
implications of this clause need to be carefully examined to ensure the
legislative framework provides for a full investigation and public
inquiry to take place where necessary. These are essential to maintain
public accountability and transparency in decisions affecting
rights of
way.
There is,
as we know, huge public interest when anything is considered that could
alter rights of way. The Ramblers Association believes as a matter of
principle that changes should not be made, and certainly not without a
public inquiry. It is keen to ensure that the greatest possible care is
taken in dealing with any legislation that might in any way conflict
with the right, hard won over many years, through public demonstration,
public trespass and Acts of Parliament, to ensure that people can
exercise rights of way.
That brings me back to concerns
that have already been expressed and the need to ensure that, because
of the huge powers the agency is taking, there is no
constraint on the publics powers to make sure that the very
best and most open inquiry, procedure or public consideration takes
places. The provisions give the Secretary of State the greatest power.
There is no statutory right, as far as I can see, in schedule 3 to
inquiries. There is a duty to ensure that objectors have an opportunity
to appear . Paragraph (7)(3)(b) states that when the Secretary of State
is considering objectors opportunities to appear and be heard
he must ensure that that the HCA is present, as well as
any other persons whom the
Secretary of State considers ought to be given the
opportunity.
That does
not give those people the right to appear, as the Secretary of State
has to agree that they have an interest. The provision therefore puts a
large amount of power in the hands of the Secretary of State. She also
has the power hold a public inquiry. The measure may be modelled on
existing provisions but, because of the potential conflict of interest
in the agencys powers, the matter needs to be considered even
more carefully than it has been in the past.
The CPRE made an intervention,
too, regarding the powers to override easements, and it discussed the
importance of public land. It proposed an amendment, but it was not
included in amendment paper. However, I can express its sentiments in
this debate, as it concerns the use of powers in
clause 11 and schedule 3. The CPRE is interested in the
Governments view on the openness of proceedings dealing with
areas of outstanding natural beauty, national parks and the green belt.
The CPRE wanted to include in the Bill a
requirement that in carrying out
its functions the HCA shall have regard to the desirability of
conserving the Green Belt and designated landscape, Areas of
Outstanding Natural Beauty and National Parks and should ensure that
its plans and activities fully respect the purposes and objectives of
the Areas of Outstanding Natural Beauty, National Park and Green Belt
designations in dealing with the extinguishment of rights of way and
the powers to override
easements.
I
should be grateful if the Minister acknowledged the important powers
that the agency is taking. The combination of powers increases the
importance of doubling safeguards against conflicts of interest. It
would be helpful if he illustrated how those problems will be dealt
with, and provided guidance on the ordering of public inquiries and the
need to ensure that the relevant people have a right to appear to
plead their case.
Lembit
Öpik:
I have experience of the vexatious use of
historic rights of way in my constituency. On one occasion, ramblers
insisted on standing in a garden belonging to some of my constituents,
and watched them have a barbecue. They said that in the past there was
a right of way that led into a forest behind the garden. The problem
was resolved at the time simply because the ramblers got bored and went
home, but sometimes we need a greater defence of the rights of people
who have unwittingly found themselves subject to an attempted
enforcement by others of long-defunct rights of
way.
Alistair
Burt:
Should ramblers not have an opportunity to observe a
future Government, even at a barbecue, and informing themselves about
them? I think that that would be helpful, and no doubt that is why
those people stood there so long.
Lembit
Öpik:
I look forward to the Governments
perspective on the matter, and perhaps the Minister will comment in his
reply. I can see the case for the amendment, because sometimes rights
of way need to be handled in a common-sense way. The issue is the
all-pervading power of the HCA. I am sure the Minister will say that
his Administration are benign and will not misuse the power, but how
can he be sure that a future Government, perhaps with an ideological
objection to rights of way, will not take advantage of the amendment to
use the HCAs powers on a wholesale basis to close down rights
of way which, as has been pointed out, have been fought for long and
hard and could be snatched back in the blink of an
eye?
Mr.
Raynsford:
I wish to raise a very small matter arising
from the extinguishing of rights of way, and I hope that it is
appropriate to raise it now rather than in a clause stand part
debate. It relates to mobile telecommunication masts or apparatus,
which are covered by paragraphs 11 to 15 of schedule 3. In the event of
an extinguishment of a right of way, it appears to be the rule that the
operator of an affected network mast can abandon their electronic
communications apparatus by serving notice to that effect on the HCA. I
do not expect many rights of way to be extinguished under the
provision, and I do not wish to conjure up a nightmare scenario of
masses of rusting, abandoned mobile telecommunication
masts. It is, however, possible that some masts will be abandoned, so
there is an inequity in the provision.
As drafted, the provision would
allow network operators who want to move their mast to another location
to recover from the HCA the cost of doing so under paragraph 14. If,
however, they simply abandon the mast and leave it to rust, there is no
provision for their meeting the cost of its removal.
According to paragraph 15, responsibility for such equipment
vests in the HCA. I suppose that the HCA will be
approached by aggrieved parties in the area worried about rusting
equipment that has been left behind, saying, You have now got
ownership, please remove it. There is no provision for the HCA
to recover the costs of removal from the operator, and I wonder why
that is the case. I do not expect the Minister to give an instant
reply, as it is a rather obscure point, but I would be grateful if he
wrote to me at a future date to reassure
me that we will not end up with the HCAs budget being eroded by
the costs of disposing of unwanted, rusting telecommunication
masts.
Mr.
Wright:
I enjoyed that debate, which usefully set out the
Committees concerns. I am grateful to my right hon. Friend the
Member for Greenwich and Woolwich for his courtesy in accepting that I
may need to write to him about his concerns about electronic apparatus.
I do not wish to box myself in with regard to future correspondence on
the matter, but I imagine that the whole point of the extinguishment of
rights of way is that land is coming up for development, and such
issues would be part of the contractual arrangements. However, I am
grateful to my right hon. Friend for allowing me to write to him about
the specifics.
I am
interested in what the hon. Member for North-East Bedfordshire said,
and he made some important points. It is true that the rights of
ramblers have been hard fought for, and it is right that we should
protect them as much as possible. The Government amendments strengthen
those rights, and the Bill offers a clear procedure for doing so. It is
very important that people have certainty and confidence in our
proposals. I am intrigued by what the hon. Gentleman said about public
inquiries, and I may have misunderstood him. I think that the procedure
in schedule 3 is entirely clear: the Secretary of State must publish
notices, there is a minimum period of 28 days and, crucially,
paragraphs (5) and (6) state that the Secretary of State is obliged to
consider any objection that is not withdrawn or otherwise
resolved.
It
continues:
The
Secretary of State must, before making a final decision, give the
objector an opportunity to appear before, and be heard by, a person
appointed for the purpose by the Secretary of
State.
Usually, that
tends to be an
inspector.
12.15
pm
Paragraph 10
explicitly
states:
The
Secretary of State must cause a public local inquiry to be held in
relation to an objection to a proposal to make an order under paragraph
3 if the Secretary of State considers that the matters to which the
objection relates are such as to require investigation by such an
inquiry before the Secretary of State makes a final
decision.
As I
said, nothing has changed in respect of existing procedures there. If
anything, I am keen, by means of the Government amendments, to tighten
things still further; to make sure that alternative rights of way are
provided, and that the ability to be consulted and heard remain. So I
am intrigued by the hon. Gentlemans sentiments, but I hope that
I have reassured him and that he can support the Government in
their
amendments.
Alistair
Burt:
I should certainly have said that the impact of the
amendments is to improve circumstances and to make things clearer
things in relation to the concerns of ramblers, and the need to ensure
that alternatives are
available.
It is
ultimately the Secretary of State who requires to be satisfied that an
inquiry is needed. My point was to ask whether, bearing in mind the
potential conflicts of interest with the work of the HCAboth as
an
acquirer and developer of landthe Minister
considered that any strengthening of the provisions might be necessary.
His answer is that he does not think that it is necessary, and clearly
at present there is no evidence to suggest that the powers would be
used improperly or that people would be left without an opportunity to
have an inquiry if they believed that there were strong circumstances
andobjectively speakingif their view appeared to be
rather stronger and better founded than the Secretary of States
decision. That is for the future. The Ministers position was
quite clear; he believes that the existing procedure will be
satisfactory, even with the new combination of powers that the agency
is taking. That is fine, I accept his position.
[
Interruption.
] The CPRE wants to check on my
views; I will let it know by telephone
later.
I am satisfied
that the amendments are designed to be helpful and the Minister has
answered my points, so I am content at this
stage.
Amendment
agreed
to.
Amendment
made: No. 19, in schedule 3, page 129, line 25,
leave out sub-paragraph (2).[Mr.
Iain
Wright.]
Schedule 3, as amended,
agreed
to.
Clause 12
ordered to stand part of the
Bill.
Schedule
4
Powers in
relation to, and for, statutory
undertakers
Question
proposed, That this schedule be the Fourth schedule to the
Bill.
Lembit
Öpik:
I have one question relating to schedule 4.
Paragraph 25 at the bottom of page 143 is entitled Power to
curtail decision-making process. How will the Minister ensure
that no future Minister will use this particular section of the
schedule to curtail the consultation process
unreasonably? As I understand it, this part of the schedule says that
the Secretary of State or the appropriate Minister can effectively
close down the investigation process when he is satisfied that enough
information is available before making a final decision. There does not
seem to be any insurance policy against pernicious
abuse.
Mr.
Wright:
I am grateful for that question. It is very
similar to what the hon. Gentleman asked in his previous line of
inquiry about public rights of way. I would point out that the
Secretary of State needs to act reasonably and in accordance with
principles of general administrative law that would be subject to
judicial review. As for the suggestion that a future Administration
might have a less benign approach to these laws, I suggest to him that
we need to work together to ensure that we continue to have a Labour
Government.
Question
put and
agreed
to.
Schedule 4
agreed
to.
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