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Lord Whitty: In Committee last week, we indicated that we were looking at bringing forward further restrictions on dogs. But these amendments are not the way to do it. Broader criminalisation and a wider ability to shoot dogs do not seem to me to be the appropriate way to go about this.
Amendment No. 397 seeks to amend the 1953 Act so that it becomes a criminal offence to fail to keep a dog on a lead in the vicinity of livestock on any land. We do not see any reason to impose new criminal sanctions on access land where there is no clear evidence of necessity. Even more importantly, I should not wish to use the Bill as a vehicle for amending other wider legislation which would have far-reaching implications for dog owners, not only on access land but also on rights of way in any public place and which is not, to my mind, supported by any clear evidence of a need.
The 1953 Act already makes it an offence for a dog owner to allow his dog actively to worry livestock. I recognise that there is a problem there. But Amendments Nos. 308 and 309 seek to criminalise the worrying of game birds by amending that Act and the 1971 Act. Amendment No. 309 would also provide a defence against civil action for a landowner who killed or injured a dog who was chasing game birds on his land. That, of course, is already the position when a dog worries sheep or cattle or any of the other species currently listed. However, while it may be generally reasonable to assume that a dog owner should be aware of the presence of the livestock and take appropriate action to control his dog, the same is not necessarily true of game birds. We have already, during the sensitive breeding and nesting seasons, provided a general restriction on dogs and, as I just indicated, we have agreed also to consider introducing stronger targeted controls on dogs to deal with particular problems.
In the consideration of introducing new criminal sanctions, it is important to bear in mind the scope of what we are seeking to achieve through the new right of access. That will be a relatively modest change for the purposes of quiet recreation on foot. We expect its impact, in general, to be limited. The increased sanction should therefore also be limited.
The main issue raised by the control of dogs is one of balance. The Bill, as it stands, provides protection for game birds in proportion to any potential disturbance. But we have agreed also to look at
Earl Peel: Does the Minister not agree that it is somewhat illogical for it to be a criminal offence for a dog to worry a turkey or a duck and yet not if it worries a game bird which has considerably more economic value?
Lord Whitty: Not necessarily. It depends on the context in which the bird is found. It is difficult to assume that the same degree of control over dogs would be required in certain areas where game birds might be found at certain times of the year as it would when walking through agricultural land.
As I said, we have already imposed some restrictions on dogs in areas where game birds are to be found and we may wish to extend those restrictions. But we do not want to extend criminalisation and certainly we do not want to extend those provisions to land which is not access land and thereby infringe the rights of dog owners, who also have rights in general law.
Baroness Byford: I thank the Minister for his response. I return to the comments I made earlier this afternoon. We find ourselves in some difficulty because the Government intend to bring forward their own amendments to deal with the position in relation to dogs. But at the moment we do not know what those amendments are; we do not have them; and it makes this debate extremely difficult.
Following on from the intervention of my noble friend Lord Peel, I find a strange difference between the position in relation to a turkey, which is not a protected animal in any way--and one can breed turkeys ad lib--and that in relation to grouse or some of the rarer breeds. I should have thought that the noble Baroness, Lady Young, who is in her seat, would identify that it is more important to protect game birds than it is to protect turkeys and the other birds. I do not follow the Minister's argument in relation to that at all.
I may be misrepresenting him but he gave the impression to the Committee that landowners are going out in a rather gung-ho fashion and shooting dogs ad lib. I hope I misunderstand him about that. That is certainly not the intention. But when a dog worries sheep, the farmer has the right to deal with the dog. Therefore, I cannot see why the Government do not accept my arguments in regard to grouse and breeding birds. There is a difficulty in this Bill because one is trying to balance the rights of access and rights of way against trying to protect, conserve and preserve for the future. Perhaps we shall return to this at a later stage but, for now, I beg leave to withdraw the amendment.
These amendments bring all the definitions relating to Part II together in one place. They are technical amendments to a number of clauses which would improve the drafting of various definitions in Part II and consolidate most of them in a new interpretation clause which would then be inserted after Clause 65, avoiding duplication. These amendments, which delete various definitions, pave the way for the consolidation of definitions. I beg to move.
As it stands at present, Clause 44(1) creates restricted byway rights over roads used by public paths, which are called RUPPs and removes the need for their reclassification on a case-by-case basis. However, that is not the end. The clause allows for the route to be upgraded to a full BOAT or to be removed from the definitive map completely if it can be established that no public rights exist along that route.
At present the status of all other types of right of way can be challenged on the basis of historical or user evidence through the modification order procedure. That is not the case with restricted byways which are a creation of statute.
Somewhat arbitrarily, the Government have decided that restricted byways can be challenged on only two grounds: that they should exist and be a BOAT or that they are not public rights of way. However, other possibilities exist. In particular, restricted byways could in reality be footpaths and should be open to challenge on that basis too. In effect, restricted byway rights are being created over all footpaths and bridleways currently called RUPPs but there is no loss of any vehicular rights over such ways.
An additional issue raised by the creation of restricted byways is the lack of any provision for compensation for the owners of the ways affected. If a footpath is upgraded to a bridleway under a public path order, compensation is payable. In that case the Bill creates restricted vehicular rights for horses and carriages over all RUPPS and compensation should equally be payable. The Government need to explain and justify their approach. I beg to move.
Lord McIntosh of Haringey: As the noble Baroness stated, the effect of Amendment No. 312 would be to prevent restricted byway rights from being created over a road used as a public path--which I, too, shall call a RUPP--if evidence were discovered that it carried only footpath rights.
That means that surveying authorities would be required, under their duty in Section 53 of the 1981 Act, not only to review restricted byways to see whether they could discover new, previously unconsidered evidence as to full vehicular status; they would also be required to look for new evidence of footpath status, just as they are required to keep under review the status of any highway on a definitive map.
In our view that would completely undermine the overall purpose of the Bill's provisions for replacing RUPPs with a new category of highway--that of restricted byway. The purpose of the provisions is twofold: first, to give more certainty for walkers, horse riders, cyclists and drivers of horse-drawn carriages than the present legislation by giving them express statutory rights to use restricted byways and in doing so open up the countryside to such recreational users. Secondly, it would reduce bureaucracy by relieving local authorities of their current duty to review the status of each RUPP individually and reclassify it as a footpath, bridleway or byway open to all traffic.
Under current legislation there is a presumption that a RUPP carries at least bridleway rights. We believe that it is reasonable to build on that presumption in creating restricted byway rights by statute. Landowners with new evidence that a RUPP is a footpath have had, since the provisions of the Wildlife and Countryside Act 1981 came into effect-- nearly 20 years--the opportunity to apply to a surveying authority for a modification order.
Until commencement of Clause 43, they may still do so. The Bill provides the opportunity to make savings for any reclassification and modification orders which have not taken effect before commencement and for the extinguishment of any new rights created by the Bill if an order comes into effect. It would also allow for savings to be made in relation to applications for modification orders. We believe the time has come to reduce the uncertainty over the status of RUPPs,
This exercise has less meaning the more caveats are introduced. That is why the creation of restricted byway rights is subject to the proviso in Clause 44(3) that a right of way needs to exist over the RUPPs in question. But, given the history of RUPPs and the current presumption of at least bridleway rights, we believe that it is reasonable now to close the book on further investigation of anything less than the rights for which Clause 44 provides.
The noble Baroness, Lady Byford, referred to the fact that compensation is payable if a bridleway is created over a footpath by order. She asked why it should not be payable if a restricted byway is created over a footpath. In the first instance, the way has never been considered as anything other than a footpath. However, if a definitive map shows a way as a RUPP, that is conclusive evidence that it carries at least bridleway rights.
Given all the factors--for example, that the addition of rights for non-mechanically propelled vehicles is not a substantial difference; that land owners have had a long time to claim RUPPs as footpaths and will be able to do so until commencement; and that it is our intention that private liability to maintain should be extinguished--we are satisfied that there is not any requirement for compensation.