The Committee consisted of the following Members:
Fergus Reid, David Slater, Committee Clerks
† attended the Committee
The Solicitor-General (Oliver Heald): Clause 11, in combination with schedule 4, removes unnecessary administrative burdens and regulatory requirements from chapter 4 of part 16 of the Companies Act 2006, some of which duplicate other requirements in the chapter unnecessarily. Chapter 4 of the 2006 Act makes provision for actions that companies and auditors must take as part of removing an auditor from office or where an auditor leaves office, and for relevant notices.
Clause 11 introduces new exemptions to the operation of chapter 4. They are focused on all UK companies, apart from a newly-defined category of public interest companies, which, because of their economic significance, are subject to more onerous requirements. The intention is to focus regulation on the cases where the administrative burden involved is needed and likely to be of benefit. The terms “public interest company” and “non-public interest company” are both defined in new section 519A, which clause 11 inserts into chapter 4 of the 2006 Act.
The new exemptions apply where an auditor has left office for exempt reasons, which are also defined in new section 519A. Experience has shown that while departures that happen for innocuous reasons are of no interest to regulatory authorities, they give rise to a large number of notices of auditors leaving office. The production and processing of those notices is an unnecessary regulatory burden.
The insolvency measures in parts 1 to 8 of schedule 5 repeal redundant legislation about deeds of arrangement, which have not been used since 2004; the authorisation of insolvency practitioners; the power of the court to order direct payment of funds due to companies in
The measures also improve the efficiency of insolvency procedures relating to the appointment of administrators and the release of administrators and liquidators. They improve choice about who can be appointed an interim receiver and continuity if a bankruptcy order is made. They remove unnecessary information burdens on people who are made bankrupt and facilitate the provision of basic bank accounts to bankrupts. They improve the investigation and enforcement regime by allowing the Secretary of State and official receivers to request relevant information about insolvency cases directly from third parties rather than the office-holder. That is important in proceedings for the disqualification of directors, which must take place within two years of the insolvency. The changes are deregulatory and designed to remove barriers. They are expected to result in savings of £8 million a year.
Toby Perkins (Chesterfield) (Lab): Clause 12 is a welcome deregulatory measure. Unlike clause 10, which we debated at some length on Tuesday, it enjoys the confidence and support of people who work in the relevant field within the industry. I draw the Committee’s attention once again to my entry in the Register of Members’ Financial Interests and the work done on behalf of my office, as a donation in kind, by R3.
The changes are likely to improve efficiency and remove unnecessary burdens on the insolvency profession and on Government. We hope that that will in turn save the industry costs. The clause will introduce several changes to insolvency law, including the abolition of deeds of arrangement—a rarely used alternative to insolvency—and will allow companies to appoint an administrator in the interim moratorium before a winding up is complete.
The clause will also repeal a provision that allows a court to order money to be moved to the Bank of England from a business in administration. It will also change how some employees are paid when the business they work for goes insolvent, taking into account the different types of contract in the sector.
The Labour party is pleased that the Government are moving in our direction by simplifying the regulatory regime on insolvency. A number of ideas proposed by the Labour party’s small business taskforce would have made the clause even more efficient, and we may well debate them later in Committee. In particular, we would criticise how only 21% of D1 reports submitted by insolvency practitioners under this Government have resulted in a disqualification, which is down from 45% 10 years ago. It ought to be easier for insolvency practitioners to expose delinquent directors. We all recognise that the small minority of bad directors can cause significant problems to our economy and to law-abiding and respectable businesses, their suppliers and their staff. There should be a greater drive by the Government to ensure that people in that minority of cases are brought to book. This clause is a welcome move in deregulation. It shows a more positive approach from the Government.
Before I sit down, I want to reflect on the Minister’s comments about the industry in Tuesday’s sitting, because I thought they were quite revealing. I appreciate that sometimes things are said in the heat of the moment that we would not have considered saying with more reflection. However, it would be of interest to the Committee to know whether this really was the Minister’s view. He appeared to allege that R3 and the industry were involved in restrictive practices. I will remind the Minister exactly what he said. In defence of his Bill, which had so little external support, he said that he considered the Labour party
If it is the Government’s position that the industry is guilty of restraining trade, of protectionism and of restricting new entrants to the market—when the industry itself is saying that clause 10 will restrict the capacity of small organisations to enter the market—it would be good for the Minister to confirm that. However, if it was one of those things that gets said in the heat of battle and does not reflect the Government’s view of the industry, it would be useful if the Minister put the record straight.
The Solicitor-General: May I begin by applauding the constructive attitude of the hon. Gentleman, and indeed of R3, which I understand has been helping him, and certainly the Committee, with clauses 11 and 12? Speeding up the process of disqualification proceedings, which the hon. Gentleman was asking for, will happen as a result of the changes. We can be conciliatory today on clauses 11 and 12.
On clause 10, the Government’s case is that competition lowers costs. For example, reducing practitioners’ training costs will help their customers who desperately need to become bankrupt and to have voluntary arrangements and respite from their creditors. I do not apologise for making that point forcefully; I want to illustrate the difference between the Labour party, which is arguing for the status quo, and the Conservative members of the coalition, who are making the point that economic freedom, competition and lower fees and costs for training are good things.
I have nothing against the world and industry of insolvency practitioners; they provide relief for many people, and I pay tribute to their good work. However, as Members on both sides of the Committee know, established practitioners in any profession are not always keen for there to be competition and lower costs, which can hit their bottom line.
Thomas Docherty (Dunfermline and West Fife) (Lab): A couple of moments ago the hon. and learned Gentleman seemed to be suggesting that only Conservative members of the coalition were in favour of lowering costs. Will he clarify what he meant by that?
The Solicitor-General: I always like to wave the flag for Conservative views on economic freedom, competition and the like. I have said enough; we are not arguing over the clause, so I commend it to the Committee.
Tom Brake: The clause is an element of a balanced package of reforms agreed by consensus at the stakeholder working group, whose members come from a cross-section of interested parties. It might help Members to know precisely what the range of the group’s membership is. As we heard in the evidence session, it includes the Country Landowners Association, the Ramblers, the Open Spaces Society and local authorities. Members will agree that that is a good representation from the organisations that have an interest in these issues.
The clause will remove the burden from local authorities of re-examining the historical documentary evidence about long-established rights of way and protect those rights for the public. The clause will remove those burdens by ensuring that, after the cut-off date of January 2026, just as under the existing provisions, it will not be possible to add any public rights of way to the legal record or upgrade them on the basis of evidence of their existence before 1949; nor will it be possible to remove rights of way or downgrade them on the basis of pre-1949 evidence that the rights in question did not exist.
Under the current law, it is possible for a person to apply to a surveying authority to have the legal record of rights of way modified if they have evidence that a modification is needed. The modification could add a right of way to the legal record or upgrade the status of a right of way shown on it. Equally, the modification could remove a right of way from the record or downgrade the status of a right of way. Such an application would trigger not only a change in the legal record, but an investigation of the evidence underpinning the application. That investigation, which is based largely on historical documents, can be very time-consuming and impose a significant administrative burden on local authorities. The clause will relieve local authorities of the burden of
By reducing administrative burdens on local authorities—I know from talking to a number of Members that that is a concern for them—we can help to ensure that the 2026 cut-off date can be met. The closure of the definitive map to historical rights of way will give certainty to landowners that public rights of way over their land will not be recorded after that date and provide certainty to the users of rights of way that they retain their rights.
Landowners and farmers have had more than 50 years since the relevant 1949 Act to make applications to the relevant surveying authority where an error may have been made. Just as it is time to provide more certainty to landowners about rights of way across their land, it is right to provide certainty to the public about the routes that they can use. We also want to save local authorities the significant burden of having to re-examine old rights of way cases. I commend the clause to the Committee.
Thomas Docherty: It is a pleasure to serve under your chairmanship, Mr Chope. With your permission, I shall briefly make a few broader points about clauses 13 to 19 as a whole to aid our progress. I begin by paying tribute to the former Secretary of State for Department for Environment, Food and Rural Affairs, my right hon. Friend the Member for Leeds Central (Hilary Benn). The process has cross-party support, because it began under the previous Government and the small matter of a general election impeded the progress that was being made on the implementation of the clauses.
We support clauses 13 to 19. I want to pay tribute to the stakeholder working group, because bringing together a diverse range of interests in a common cause was a difficult and contentious process. I am sure that other Committee members have had representations made to them about additional clauses that could have been inserted. We all note the comments in the working group’s evidence session, when they said that there was perhaps still work that they would want to do going forward. Our view is that we really have to wait and see what the working group comes up with before we make any further amendments.
In that spirit, having put those broad remarks on the record, we very much support clause 13, as we do the rest of the clauses. It would be an understatement to say that they are simply tidying things up, but they are fairly logical steps. It is probably a good example of deregulation, because as the Parliamentary Secretary indicated, this is about reducing the bureaucracy and burden where it is appropriate to delete a right of way. With that, I shall bring my remarks to a close.
Kelvin Hopkins (Luton North) (Lab): It is a pleasure to serve under your chairmanship once again, Mr Chope. I obviously do not wish to take a different view to my hon. Friend the Member for Dunfermline and West
There is also a concern as rights of way across large tracts of land often provide strips of land for wildlife and environmental benefits—hedges, for example. Has sufficient regard been paid to the environmental impact of abandoning rights of way? If landowners and farmers can strip away hedges and strips of land, it will no doubt make their farming a more profitable business, but it will not necessarily improve the local environment.
Those are just a few thoughts and concerns. I recently went on a ramble with our local Ramblers group. Indeed, I featured in a photograph in one of its recent journals, which was a great pleasure. I want to ensure that ramblers’ rights and views and people’s right of access to land will not suffer in any away because of the clause, which tidies up the current provisions.
The one other point on access is that there is a strong view among ramblers, landowners and others that motorised vehicles should not have access to unmetalled roads. That is perhaps not addressed by the clause, but it is something that we ought to support.
John Cryer (Leyton and Wanstead) (Lab): It is a pleasure to serve under your chairmanship, Mr Chope. I have one brief question for the Minister. I do not want to delay the Committee, but the question is a bit too long for an intervention.
Possibly as with other members of the Committee, the general secretary of the Open Spaces Society, Kate Ashbrook, has written to me. I met her a number of years ago, and she said that there was an agreement at the working group, which the Minister has mentioned, that a stakeholder review panel would be constituted to monitor the Bill’s implementation after Royal Assent. Will the Minister confirm that the stakeholder review panel will be constituted after Royal Assent?
Chris Williamson (Derby North) (Lab): I will take a small moment of the Committee’s time this morning to endorse most of what my hon. Friend the Member for Luton North said. Access to the open countryside is clearly important. There is a strong Labour movement tradition of securing those rights, not least of which, in my home county of Derbyshire, was the mass trespass in the 1930s to gain access to the Peak district, although more can be done to open up the Peak district and other wilderness areas of the country to an even greater extent.
I endorse nearly everything that my hon. Friend said, but I have a word of caution on the access of motorised vehicles to unmetalled roads. I understand that there are concerns, but I have been contacted by a constituent who is a member of a vintage motorcycle group that uses unmetalled roads across the country. The group assures me that it uses the roads responsibly, although I know that, in certain circumstances, there is tension between walkers and people who want to access rights
Tom Brake: All the contributions have been helpful in clarifying the clause’s intent. I am happy to underline the point, made by the hon. Member for Dunfermline and West Fife, there was activity in this area under the previous Government, but it was fortunately interrupted by the general election. The coalition Government have continued the process. I echo his thanks to the stakeholder working group for putting together a package. Members are probably surprised that the group was able to reconcile the views of organisations as disparate as the Ramblers and the Country Land and Business Association in producing that package. It is worth underlining, however—this responds to other points made—that the package should be taken in its entirety. As the Opposition have not tabled any amendments to the clause, that package will henceforth proceed, and I hope that, when it arrives in the House of Lords, it will also be seen as a package. That, however, is for it to deal with.
Thomas Docherty: Just for avoidance if doubt, I was trying to make it clear that we do not see the need for amendments at this stage, but I cannot make any guarantees for Report or the Lords. I do not have your wisdom and foresight, Mr Chope, so I will have to reserve judgment on what we may choose to do.
Tom Brake: Nor do I have Mr Chope’s wisdom and foresight. We will leave it to the Opposition to decide what they want to do on Report, but the fact that no amendments have been tabled to the rights of way clauses is a good indication.
David Rutley (Macclesfield) (Con): I would also like to applaud the way in which the group has worked together: it is unprecedented, and should definitely be welcomed. Despite the points made by the Opposition, will the Minister confirm that there are no dissenting voices and that the group is continuing to work together in a spirit of unity?
Tom Brake: I can certainly confirm that the group has worked hard and that, as part of that process, compromises have been made. So far, I am aware of no concerns from the group in relation to the package. However, a number of those involved have expressed concerns that should amendments come in from one or other of the organisations represented on the stakeholder working group, they would want to discuss that matter to ensure that the amendments represented the view of the whole group. However, we are not at that stage, and we are not currently considering any amendments, albeit that the Opposition have indicated that they may table some on Report.
Andrew Bridgen (North West Leicestershire) (Con): Will the stakeholder working group continue its work, perhaps to resolve other issues of conflict between landowners and users of the countryside such as the Ramblers, or, having done this work, will it be disbanded?
The hon. Member for Leyton and Wanstead asked about the review process. The Government’s first objective is to put in place the primary legislation needed to give effect to the rights of way reforms package. We will then prepare the secondary legislation and guidance needed to implement the stakeholder working group’s remaining proposals.
With the stakeholders’ consensus in mind, and to ensure that the benefits of the reforms can be realised equitably across the full range of stakeholders, the package as a whole will be brought into effect when all those elements are in place. That will include the commencement order for the 2026 cut-off date, given that the commencement of the provisions was one of the group’s recommendations, and that it agreed that the package should be implemented as a whole. As I mentioned in response to an intervention, the stakeholder working group’s advice will be sought on the constitution of the review panel, as was set out in another of the group’s proposals. The panel will be able to advise on how well the reforms are working and whether any further measures need to be taken before the cut-off date.
The hon. Member for Derby North referred to motorised vehicles and to the Peak district. He may not be aware that I spent some of my childhood in Derby, or in Mickleover, and enjoyed trips to the Peak district. We would often drive up at the weekend in my family’s Austin Princess.
Tom Brake: Well, for those people who know what an Austin Princess is, I must say that our car was not the “smart” version; it was very much the second-hand version that someone wanted to get rid of because it ate petrol like nobody’s business. However, we would go up to the Peak district, walk and inevitably fall in the river, before coming back soaking wet. Nevertheless, I enjoyed those trips and I certainly want to ensure that what the Government propose will facilitate the use of rights of way in beautiful places such as the Peak district.
On the subject of motorised vehicles, we believe that there should be a proper debate about their use on public rights of way. However, to date there has been insufficient consultation on this issue for us to consider introducing measures relating to it in this Bill. I just want to make it clear that there is nothing in this Bill that pertains to that issue.
Tom Brake: I am indeed happy to confirm that, and I commend the work done by the National Trust. I have to declare an interest as a member of the trust; I suspect that many other Members here are, too. I also commend the national park authorities on the positive work that they do to maintain our environment for all of us to use and enjoy.
Tom Brake: The clause is another part of the stakeholder working group’s package of recommendations. It will enable surveying authorities to avoid unnecessarily duplicating the work of the voluntary sector, which carries out research into historical public rights of way. The voluntary sector’s research into rights of way is significant in scope, and its research leads to many applications to have unrecorded rights of way shown on the definitive map and statement. Consequently, there will be a considerable saving of resource to local authorities as a result of this provision.
The clause empowers the Secretary of State to make regulations that enable a surveying authority to designate any right of way, in order to defer its extinguishment for a period of 12 months after the cut-off date of 1 January 2026. Before the 12-month period expires, authorities will have to decide whether to make an order to add the right of way to the legal record, and therefore preserve it, or allow it to be extinguished. This means that surveying authorities will be able to wait until after the 2026 cut-off date to make a full assessment of all the applications made by the voluntary sector to have rights of way recorded. Any right of way covered by an application will be protected from extinguishment, if the evidence on it is persuasive, so authorities can concentrate their effort on protecting useful rights of way that are not already covered by an application.
The 12-month period will also help to deal with the possibility that there will be a large volume of applications to surveying authorities immediately prior to the 2026 cut-off date for modifications to be made to the definitive map and statement, in order to show rights of way that are currently unrecorded. That will enable local authorities to better manage resources ahead of the cut-off date. This provision will also benefit the public at large by enabling authorities to ensure that useful, or potentially useful, rights of way are not lost for ever. I commend the clause to the Committee.
Thomas Docherty: I will be brief. All hon. Members have been struck by the cross-party challenge that we face over the 12 years remaining until the 2026 deadline. As we heard from the witnesses in the evidence session, no one is under any illusions about the fact that a huge amount of work has to be done. We believe that the clause is a sensible back-stop measure that will help us to achieve that common goal.
I have been struck this morning by what a consensual debate we are having. I cannot remember whether you were on your sabbatical, Mr Chope, when the Countryside and Rights of Way Act 2000 was going through Parliament, but it is amazing how we have come on during the 14 years since then, and how we are all pulling together to make the rights of way work.
Tom Brake: I congratulate the hon. Gentleman on his brevity and the appropriateness of his comments. He should not read too much into the fact that there is consensus on this matter, because I doubt that it extends to other areas of policy.
Tom Brake: The clause will ensure that where a public right of way is used by an individual to gain access to their own property, and that right of way will be extinguished at the cut-off date of 1 January 2026, the individual will be granted a private right of way to enable them to continue to access their property. Without such a provision, the extinguishment of a public right of way might cause real difficulties and considerable hardship for the individuals concerned. The Government clearly do not wish an individual who previously gained access to land or property through a public right of way to lose their right of access at the 2026 cut-off date. Clause 15 protects any person who has an interest in land that is affected by the 2026 cut-off date from the burden of any loss of access to it.
This is a common-sense provision, designed simply to maintain the status quo as far as individuals’ right of access is concerned. A similar provision was successfully introduced in the Natural Environment and Rural Communities Act 2006, which extinguished significant numbers of unrecorded rights of way for motor vehicles, and clause 15 will operate in the same way as that provision.
Tom Brake: The clause removes a burden on landowners who are prevented from making a formal application for the diversion or extinguishment of a public right of way by a restriction in the “right to apply” provisions on the prescribed types of land use. The clause also gives the Secretary of State the power to determine not to make a diversion or extinguishment order in appeal cases where it is considered that the merits of the appeal do not warrant it. The “right to apply” will enable a landowner to make a formal application to an authority to divert or extinguish a right of way. With that will come a right of appeal to the Secretary of State if the authority refuses or fails to act.
The clause corrects flaws in the original Countryside and Rights of Way Act 2000 provisions, which have not yet been commenced, and it removes one of the impediments to the “right to apply” being introduced. The “right to apply” is currently limited to those applying for a diversion or extinguishment of a right of way on land that is used for agriculture, forestry, or the breeding or keeping of horses—one might call that “horsiculture”. In many cases, however, there will be good reason for diverting or extinguishing a public right of way over other types of land. For example, a right of way might pass through commercial premises, where there might be health and safety issues, or through the garden of a family home, where privacy and security would be threatened.
That restriction on the types of land for which a landowner can formally apply for a diversion or extinguishment is a significant anomaly in the legislation. The current legal position places an unnecessary constraint on landowners other than those engaged in agriculture, forestry or the keeping of horses. It places a burden on other types of business operations, for example, and on householders through whose garden a right of way passes.
We intend to supplement the clause with guidance agreed by the rights of way stakeholder working group. The guidance will direct local authorities to work on the presumption that, wherever practicable, public rights of way should be removed, on application, from family gardens, working farmyards and commercial premises where privacy, safety or security is a significant concern.
The first part of clause 16 will make the necessary legal amendments to the Highways Act 1980 to allow the Secretary of State to prescribe in regulations other kinds of land in England in respect of which diversion or extinguishment applications may be made.
The second part of clause 16 will remove a potential burden on the Secretary of State where there is an appeal against a local authority’s decision not to make an order. In such cases, the Secretary of State is currently required to prepare a draft order regardless of the quality and merits of the appeal. It seems only right that the Secretary of State should have some discretion to decide whether to make an order.
Thomas Docherty: I suspect that this is one of the more contentious debates had within the stakeholder working group over the past few years. Many hon. Members will have had representations on the issue in recent months and years.
We must acknowledge that there is a tension between, on the one hand, the Ramblers and others who, as has been said, have established over a long time the public’s
When the Scottish Parliament was debating the right to roam, it came down on the issue of curtilages. That is one of the examples where the Scottish Parliament, when it introduced the right of way in 2001, made exemptions. It is therefore pleasing to see the English once again catching up with us Scots.
The key thing that I am sure the Minister will want to put on the record is that when it comes to farm premises, which often have tracks or roads passing through them, the onus will be on the farmer to demonstrate that there is significant adverse impact on their business. As I am sure hon. Members will know, there have been a small number of cases, regrettably, where there were disputes because farmers simply did not want to allow access through their land. I hope that the Minister will reassure us about what emphasis he expects the Secretary of State to place on the word “significant”.
Andrew Bridgen: Does the hon. Gentleman appreciate that there are health and safety risks to the public? There are few places more dangerous than a farmyard with regard to health and safety. Walking straight through the middle of a busy farm environment can be tremendously dangerous for the public.
Thomas Docherty: Absolutely. The hon. Gentleman makes a good point. As someone who represents a rural constituency and talks to farmers, I agree entirely. In 2001, during the foot and mouth crisis, there was cross-party consensus—everyone supported this, the Ramblers included—that we had to suspend the right, not just for the health and safety of the walker, but for the protection of animals from disease, and because of working practices.
The hon. Gentleman is absolutely right, but we do not want—I am sure the Minister will be happy to confirm this—that small group of farmers who do not like the rights of access to be able simply to say, “I am going to take away the rights of access because they happen to pass through my property.”
David Rutley: I understand the hon. Gentleman’s point. As a representative of a rural seat, does he recognise that, in that mix, it will be vital that there is adequate education for walkers to ensure that, for example, when they take dogs with them, they do not scare livestock, which could cause real danger? A balance has to be struck. What does he think about that?
Thomas Docherty: I am again slightly confused. We are having a good debate about important issues. The hon. Gentleman is right, and I am sure all colleagues would agree, that there is a need to consider that minority. We are talking about minorities: minorities of farmers and minorities of people who perhaps abuse the rights of access to countryside. That is particularly relevant to the lambing season.
It is a big issue and I know from my constituency that it is a source not just of frustration but of business loss if people do not behave responsibly. Perhaps I could tempt the Minister to say a bit more about that and how
Tom Brake: The hon. Gentleman will be aware that we have produced draft guidance on diversion or extinguishment of rights of way that pass through gardens, farmyards and commercial premises. That draft guidance will take on board the comments that hon. Members are making. That is part of the process of consulting on it.
The hon. Gentleman will be aware that when that was circulated there was some information about how the guidance would be used. I would like to draw his attention to it. The draft guidance has been agreed by the rights of way stakeholder working group. The concerns of the Ramblers, for instance, about farmers unilaterally deciding to block a right of way would have been articulated in the working group, and the working group is content with the guidance. It is intended to make local authorities work on a presumption that, wherever practicable, public rights of way should be removed on application from family gardens, working farmyards and commercial premises, where privacy, safety or security is a significant concern.
We could clearly get into an argument about what constitutes a significant concern around safety, security or privacy, but I hope that local authorities will interpret that in the way that both the hon. Gentleman and I would like. If a farmer simply objects because they do not want people walking through their land, that is one thing. If a farmer objects because the route takes walkers through land where there is regularly heavy machinery moving around that could present a threat, I think the local authority would consider that in that circumstance it would be appropriate to take action.
Tom Brake: Clause 17 gives landowners a new land-management tool, by providing a method by which they can obtain consent to erect gates on restricted byways and byways open to all traffic. They are currently burdened by being unable to gate byways where it is necessary for stock control. Local authorities already have the power to authorise the erection of gates on other types of public rights of way, such as footpaths and bridleways. It is a significant drawback that the statutory provision does not also include byways. The clause seeks to remedy that problem.
Local authorities would now be able to give statutory authorisation to such gates on byways where a landowner makes an application to them. The clause would simplify the law by removing that unnecessary restriction to the way that farmers can manage their land, in particular in relation to the way that they control their livestock. Where byways run through agricultural land it makes sense that a farmer is able effectively to manage his livestock through the use of gates. That provides for the security of the livestock and helps the farmer.
An additional benefit is that, as a consequence of the amendment made by the clause, farmers may be less likely to get embroiled in long and costly disputes, in spite of the evidence, over orders to add a byway to the legal record. Farmers’ principal concerns about byways tend to be that the existence of a byway makes stock management more difficult. By making it easier for farmers to erect the gates that are necessary for their stock management, we are likely to resolve a number of the disputes that we see over the issue of byways.
By limiting the number of disputes, we will see a reduction in the number of applications and appeals to the local authority, and so reduce the burden on them. The move will benefit those farmers who need to manage their stock at the same time as balancing the needs of those who use the byways. I commend the clause to the Committee.
Thomas Docherty: I shall be incredibly brief. Again, we think this is a sensible step and, as the Minister has said, it came out of the working group. As far as I am aware, this was one of the less controversial measures, because it seeks to provide greater support to farmers while protecting, in a common-sense way, the right of access, so we will be supporting the clause today.
Chris Williamson: I wonder whether the Minister could give me some reassurance. I go back to my constituent who is a member of the Vintage Motor Cycle Club, because although erecting gates will not unduly impede the progress of, say, a rambler walking along a right of way, it would have a significant impact on the enjoyment of rights of way by people who are involved in the Vintage Motor Cycle Club. I wonder whether a more pragmatic and sensible alternative—this would safeguard the rights of farmers, as well as enabling unimpeded access for members of the Vintage Motor Cycle Club and others who want to use motorised vehicles on rights of way—would be to use a cattle grid instead in order to contain livestock, rather than putting up a gate. A cattle grid with a smaller gate alongside it would enable horse riders still to use the rights of way. However, for people who are enjoying the rights of way on a vintage motorcycle, having to get off and on again to open a gate would perhaps be a step too far in terms of tilting the balance in favour of the farmer, at the expense of other members of the community who want to enjoy the rights of way in the manner that I have outlined.
Kelvin Hopkins: Unusually, I take a slightly different view to my hon. Friend, because I have had friends and representatives lobbying me over access for motor vehicles, as there is the problem of the land and rights of way being degraded by tyres and of the land being worn away. As a former motorcyclist and vice-chairman of
Chris Williamson: Maybe my hon. Friend and I are closer than he first thought. He proposes a very sensible compromise about designated rights of way that could be used by motorised vehicles, so our normal agreement on most matters is back on track.
Kelvin Hopkins: I thank my hon. Friend for his helpful intervention, and I am sure we can agree on that. I just sound a note of caution to make sure that the views of environmentalists and those who want to preserve the environment and countryside are noted.
Andrew Bridgen: Does the hon. Gentleman agree that the erosion of land by motor vehicles on rights of way is a concern, especially after adverse weather conditions? When it has been particularly wet, as it has recently, that can have a very severe impact on the land.
Kelvin Hopkins: Yes, the hon. Gentleman is absolutely right. There is a big difference between big, four-wheel-drive vehicles which go on to land and churn everything up, stripping away the earth from a bridleway or whatever, and a motorcycle, for example, which is much less damaging. As my hon. Friend the Member for Derby North says, however, perhaps we can compromise by having areas where it is accepted for motorcycles to go, without having general access to the countryside for motorised vehicles of any kind, because of the damage that can be done. That is to speak in favour not of farming interests, but of the environmental interests, which I am sure we all share.
Tom Brake: I am happy to respond to those points. I am pleased to see that the split on the socialist flank of the Labour party was resolved during the course of the debate and that those Members have rejoined.
On what the hon. Member for Derby North said, I will have to find out whether cattle grids were considered as an alternative proposal. The stakeholder working group might have had a difficult time reaching a consensus on it, so it could have been part of their deliberations but been ruled out as an option. I will have to get back to the hon. Gentleman.
Andrew Bridgen: Perhaps my right hon. Friend could clarify something that I was at a loss to understand about the Vintage Motor Cycle Club and the inability to open gates. Was he talking about vintage motorcycles or vintage motorcycle riders?
Tom Brake: I would not want to cast aspersions on the athletic abilities of the riders of those bikes. I was about to suggest, however, if the hon. Member for Derby North has seen “The Great Escape”, that there is clearly an alternative to opening gates, which is simply to jump over them.
The hon. Member for Luton North suggested that the provision could be restricted to designated routes. I will need to get back to him on that, but it is worth pointing out that gates are already authorised in some cases on ordinary roads. The provision is therefore in line with actions that already happen. The byways are generally used for recreational purposes, so one might assume that the gentleman or woman on the vintage motorbike would not be racing to get from A to B and, therefore, the requirement to stop, enjoy the scenery, open the gate, go through it and close it will not have a great impact on their leisure.
Tom Brake: The clause changes existing legislation to enable both local authorities and the Secretary of State to operate on a full cost recovery basis when dealing with applications by landowners for a diversion or an extinguishment order under the right to apply, as introduced by the Countryside and Rights of Way Act 2000 and amended by clause 16 of the Bill. The right to apply will enable a landowner to make a formal application to divert or extinguish a right of way, and with it will come a right of appeal to the Secretary of State if the authority refuses or fails to act.
The right-to-apply provisions, however, are framed in such a way as to impose a centrally prescribed fee on local authorities, which means that some local authorities charge too much and some too little. The existing law around cost recovery for the process is therefore unsatisfactory. A local authority might be discouraged from processing an application for a diversion, as it could be burdened with substantial costs by being unable to recover them in full. A landowner might therefore be unfairly treated by not having his right of way diverted.
Under the current law, local authorities may recover part of their costs from a landowner when making a diversion or extinguishment order, but cannot be sure of recovering all of their costs. Local authorities are consequently reluctant to respond to applications to make such orders where they involve public expenditure, but are of benefit wholly or mostly to the landowner.
The first part of the clause will remove the centrally prescribed fee, leaving the way open for local authorities to recover their actual costs through the existing regulations. As part of the rights of way reforms package, we will be amending those regulations to enable full cost recovery, while ensuring that recovery does not exceed the actual cost.
The second part of the clause extends the existing arrangements under which the Secretary of State’s costs of handling an appeal may be recovered. At present, only the costs of an inquiry or a hearing may be recovered. The amendment will enable the costs of appeal conducted by the exchange of written representations
Thomas Docherty: I am grateful to the Minister for sending over the impact assessment for clause 16 yesterday. I am therefore slightly disappointed that we did not receive the economic assessment of the costs for clause 18. I want to press the Minister on this issue. What estimate have the Government made of the costs to the applicant? We all want to reduce the burdens on landowners—for example, farmers—when they make an application. It would therefore be helpful if the Minister provided a figure for the fee that he anticipates will be recovered from the applicant.
Tom Brake: I thank the hon. Gentleman for that question. I can provide some clarification, but perhaps not in detail that he requires. Clearly, the costs will vary considerably across the country. They will depend on whether there are objections to the order and whether the matter goes to a public inquiry. It is therefore difficult to give him the precise guidelines on the costs that he seeks. The important thing is that there will be full cost recovery, but local authorities will not be allowed to make a return—a profit—when they process the application. As I have said, when there is public interest, the local authority may choose not to pass on the full processing costs.
Thomas Docherty: I am slightly disappointed by the Minister’s answer, although I accept that he does not have the figures to hand. In the spirit of co-operation, will he undertake to write to Committee members after today’s sitting to set out the range of figures? If he gives that undertaking, we can proceed in good grace.
Tom Brake: I am happy to write to the Committee to set out whether there is additional information that can provide greater precision on the likely costs. The difficulty is that the costs will vary depending on things such as the complexity of the application and whether it goes to appeal. Nevertheless, I will provide more clarity if it can be made available.
Thomas Docherty: I am grateful for that intervention, but I am genuinely surprised. The Government—I am not making a political point—say that the Bill is about reducing burdens, and they have obviously done a lot of work on it, so they must have a range of figures. I appreciate that the Minister will need to ask his officials to dig out the relevant paperwork, but it is not beyond the wit of the Government to tell the Committee whether the process will cost £50 or £50,000. I am trying to be helpful by suggesting that they give the Committee the range of costs. I take the Minister’s point that the costs will vary; it is horses for courses. Will he write to us and
Toby Perkins: My hon. Friend is being generous in giving way, as always. It is not self-evident that the Government would not have introduced the measure without knowing how much it will save. They have introduced it without knowing how much it will save.
Thomas Docherty: My hon. Friend is perceptive. I am not sure whether “scooby” is a parliamentary word—it is certainly a word in Scotland—but it appears that the Government do not have a scooby about the cost. I am surprised because we have repeatedly heard, as I am sure the Members who served on the Joint Committee will have done, that the Bill is about reducing burdens.
I am slightly nervous that the Government do not seem to know what the cost to landowners and farmers will be. However, I suspect that while I have been on my feet the Minister may have received some inspiration, so if he wants to intervene on me I shall be happy to give way.
Tom Brake: I am happy to intervene. Inspiration sometimes comes in a flash in Committee, and I appreciate that. We have some research on the matter, and I am in a position to give a range of figures for the likely cost. I shall happily write to the hon. Gentleman and other members of the Committee setting them out.
Andrew Bridgen: Surely, the hon. Gentleman knows from his own experience how contentious, protracted and expensive disputes over rights of way can be and understands that anything that cuts the time will cut the expense.
Thomas Docherty: I am conscious that you may pull me up, Mr Chope, for reopening a debate that we have already had, but the clause is really about who pays and the transfer of that, rather than the simplification of overall bureaucracy: I shall try to avoid temptation. Given the generous offer by the Parliamentary Secretary to write to members of the Committee, I am more than happy to express our continued support for the clause.
Tom Brake: Schedule 6 introduces modifications to the existing procedures for making and processing applications and legal orders to record and alter public rights of way. Those modifications will either streamline existing procedures or provide simpler alternative procedures to reduce the administrative burden on applicants, local authorities and landowners. The schedule is the meat of how we shall ensure that local authorities can process applications much more quickly than before.
Schedule 6 will enable the Secretary of State to make regulations prescribing the transitional arrangements for applications for a definitive map modification order made before the new procedures come into force. It is in five parts. Part 1 contains two new procedures that will make it easier and simpler in England to change the record in certain circumstances. The first procedure provides for regulations to be made setting out a simplified, less burdensome, procedure for making basic factual corrections to obvious administrative errors in the legal record.
The second procedure provides for a simplified, less burdensome, procedure for adding a right of way to the legal record where the landowner acknowledges its existence and consents to its recording. The procedure enables the consent to be conditional on having changes to the right of way agreed with the local authority before it is recorded. The changes may include the route of the right of way, its width, or a limitation on its use, such as a gate.
Part 1 of schedule 6 will raise the threshold for the test that applies when deciding whether to make an order to change the legal record. The test will be the normal civil test of the balance of probabilities, rather than the current weaker test of whether the right of way is “reasonably alleged to subsist”.
Parts 2 and 3 introduce, respectively, proposed new schedules 13A and 14A to the Wildlife and Countryside Act 1981. The new schedules will impose a higher quality standard for applications to record rights of way, and streamline and simplify existing procedures. Proposed new schedule 13A has several key features. It will provide for a preliminary assessment of applications, so that a local authority will be able to reject, without further investigation, applications that do not show any reasonable basis for the change that they seek. The Secretary of State will be empowered to give guidance on the standards to be applied in such assessments. That will reduce the administrative burden of investigating and deciding spurious or poorly founded applications and will reduce the impact of such applications on landowners.
There are rights of appeal to the magistrates court both where an authority has failed to carry out a preliminary assessment within three months of receiving the application and, for applications that survive the preliminary assessment, where an authority has not dealt with an application within a prescribed period. The latter will replace an existing right of appeal to the Secretary of State, which is widely regarded as ineffective.
Proposed new schedule 14A sets out a new procedure for dealing with appeals against a local authority’s refusal to make an order following an application. That will reduce duplication and bureaucracy. It will prevent a case from being submitted to the Secretary of State two or more times—as might currently happen—before being resolved.
The new schedule sets out the procedures for making orders to modify the legal record of rights of way, by replacing the current schedule 15, and has the following key features. It will remove the current requirement for the local authority to give notice of an order by publication in a local newspaper. Instead, it is required to give notice by publication on the authority’s website or through the use of other digital communications media. This measure will significantly reduce the cost to the local authority of making an order.
The new schedule will enable a local authority to disregard objections that are not relevant to the decision to make an order, instead of having to submit them to the Secretary of State for a decision, as has to happen at present. That will reduce the number of cases in which the Secretary of State has to review authorities’ decisions.
The new schedule will increase the scope for the local authority and the Secretary of State to sever orders, so that only the part that is disputed need be submitted to the Secretary of State for consideration.
If an order is decided by the Secretary of State but the decision is found by the High Court to be flawed, the new schedule will enable the Court to quash the Secretary of State’s decision rather than the order. That will reduce the number of cases in which the order-making process has to start all over again from scratch.
Part 4 of schedule 6 will apply the same deregulatory measures as part 3 to the distinct context of orders that divert and extinguish rights of way under the Highways Act 1980. These measures will remove the requirement for the local authority to give notice of an order by publication in a local newspaper; enable a local authority to disregard irrelevant objections to orders; increase the scope for the local authority and the Secretary of State to sever orders; and enable the High Court to quash the Secretary of State’s decision rather than the order itself.
Thomas Docherty: As the Parliamentary Secretary has indicated, this is the meat of these clauses. The hon. Member for North West Leicestershire made a point a few moments ago about the cost. This, of course, will be part of the point that he was rightly making about reducing the burden.
Again, we fully support these proposals. As I said at the start of my remarks this morning, they are an outcome of the stakeholder working group. I again pay tribute to it. I suspect that a fair amount of hard bargaining took place among the various interest groups. Probably the only observation that I would make is that I was slightly surprised not to have been lobbied by the association of newspapers, because of course these measures will reduce a revenue stream, but we understand
We very much support this sensible set of measures, which will streamline the bureaucracy. As I said at the start of my remarks, we are all, across the Committee, aware of the great challenge that we face over the next 12 years to get this process done, and we will therefore support these measures today.
Tom Brake: We move on to a new matter, not related to rights of way—the erection of public statues. Clause 20 will remove the requirement on persons seeking to erect statues in public places in Greater London to obtain consent from the Secretary of State for Culture, Media and Sport before doing so. They will, however, still have to seek planning permission from the relevant local planning authority. This change does not extend to the City of London and the Inner and Middle Temples, where permission from the Secretary of State will still be required.
The clause will amend the Public Statues (Metropolis) Act 1854 by removing section 5. The section is rarely used and is of little practical benefit. The Act predates the introduction of the planning system. The Town and Country Planning Act 1990 provides similar controls, not just in London but nationally. The change will remove double-handling of applications to erect statues. In real terms, it is expected to have low impact and only modest benefits, since on average only one case per year is referred to the Secretary of State for approval under the 1854 Act, because, in practice, people simply ignore the requirement. The clause should therefore help to simplify and streamline the planning process, without permitting a proliferation of public statues in Greater London.
Thomas Docherty: The Parliamentary Secretary has referred to the Secretary of State on a number of occasions. For the benefit of the Committee, will he clarify which of the Secretaries of State has the power at the moment?
Thomas Docherty: I shall be brief. As the Parliamentary Secretary says, the clause is straightforward. I understand that the hon. Member for Croydon Central is already beginning a campaign for Mr Tony Pulis to get a statue on Whitehorse lane, if Crystal Palace stay up at the end of the season. I am sure that he will support anything that makes that campaign a little easier. We will support the clause today.
Kelvin Hopkins: The Parliamentary Secretary said that he did not expect the change to lead to a rash of inappropriate statues across London. Not being a London Member, I defer to my London colleagues on that matter, but is it not useful to have a backstop? A local authority might want to put up a lot of statues to aldermen bigwigs, particularly in those boroughs where one party has a permanent dominance. With such rare examples of dispute, it might be useful to have the backstop of the Secretary of State. Obviously, I will not oppose the clause. My hon. Friends are supporting it and I go a long with that. Will the Minister reassure us that the change will not lead to a rash of statues to Alderman Bigwig?
James Duddridge (Rochford and Southend East) (Con): I merely ask for a technical clarification of the extent of the measure. Will it apply only to statues, or will it apply to other items? I am particularly thinking of big busts and other erections.
Tom Brake: I am not sure whether it would be in order for me to respond to that last point. I shall start with the point made by the hon. Member for Luton North. The proliferation of statues to Alderman Bigwig would already have happened, because the application process is not one that tends to hit the Secretary of State in the first place. We would have to rely, and I am sure we can, on local authorities. For instance, if a proliferation of statues of Boris Johnson was thought appropriate, we would have to rely on the local authorities maintaining control to ensure that the number across London was limited.
On the point made by the hon. Member for Rochford and Southend East, the clause simply relates to statues. I will struggle to work out whether a bust does or does not constitute a statue or whether a statue must be full-length and include arms and legs. I will look for inspiration and if I do not get it in the next few minutes, I will respond in writing to the hon. Gentleman, so that he can have the clarity that he seeks on the subject of erections in London. With that, I commend the clause to the Committee.