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Baroness Byford: I rise to seek clarification in regard to one or two points in the amendment. I understood from the noble Baroness's introductory remarks that she was concerned that volunteer workers possibly felt that they were unequally placed to cope with putting forward their arguments as to why a particular path should remain open or closed as compared with the landlord. I shall give the noble Baroness the opportunity to respond.

The noble Baroness also indicated that the local authorities would take over the responsibility from magistrates. I am trying to follow her argument correctly. Does she have examples of cases where the Ramblers' Association and the Open Spaces Society have raised these issues with the magistrates' courts and found that they were not fairly dealt with? Perhaps she can indicate the proportion of cases where people felt that they had been successful and where they felt that they had not. This matter is a little unclear to me, and the point worried me immensely. I am not a JP, but I have friends who are. Whether they deal with this particular issue, I have no idea, nor have I had a chance to talk to them about it. Is the implication that JPs are somehow inadequate or that they are not doing their job properly and the noble Baroness believes that local authorities would be better at dealing with these matters? Perhaps she will clarify the point.

Baroness Lockwood: The alternative is not the local authorities; it is the usual statutory way of the Secretary of State hearing appeals through an inspector and submissions being made to the inspector. Certainly, I am not casting doubt on the ability of magistrates' courts. It is just that this is a rather strange and archaic piece of legislation with which, I am led to understand, both volunteer workers and the magistrates' courts have some difficulty in dealing.

Baroness Byford: I am grateful for that clarification. I am sorry; I was trying to follow the noble Baroness's argument logically. owever,HowvI have no problem in following the argument; however, I am still somewhat confused in that the noble Baroness has not answered my question as to how many cases have been brought which she felt were not dealt with clearly by magistrates and where groups might have been happier had their evidence been heard by the Secretary of State in appeals--presumably because it is a slightly more informal system. I should have thought that the cases would be judged in the same way. What I am searching for is the background or the statistics that form the basis for bringing these amendments forward.

Baroness Lockwood: I do not have any statistics. As I said at the outset, a large number of changes go through the courts throughout the year. It is the view of those who are making representations against the changes that it is much simpler and more straightforward to do so in the normal way whereby

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the Secretary of State receives the appeals and appoints an inspector to undertake a public hearing where evidence can be submitted either in writing or orally.

Baroness Miller of Chilthorne Domer: I have enormous sympathy with the voluntary sector in everything that it tries to do on the issue of rights of way. Certainly we should have a great deal of sympathy with the kind of thing that the noble Baroness seeks to achieve with her amendment, although I am not sure that this is necessarily the way to do it. Having listened, for example, to the complexity of the exchange between my noble friend Lady Scott and the noble Lord, Lord McIntosh, earlier on our Amendment No. 322A, I can see why the voluntary sector might well feel that a simplified method is desirable. Although I am sure that the Government have their reasons, in Part II of the Bill we are still stuck with an essentially difficult process every step of the way. It seems to me that the kind of procedure used to develop local plans is much more streamlined and inclusive of the public and that it is much easier to make your case if you are from the voluntary sector.

At this stage, I should like to read the noble Baroness's remarks. As so much of the rights of way improvement work will fall on the voluntary sector, we should like to take seriously any practical suggestions to help the sector.

Lord Whitty: Perhaps I may deal first with the main part of my noble friend's Amendment No. 367. The main burden of the amendment is to remove the procedure from the magistrates' courts as an option.

The question of whether the powers under Section 116 should be removed from the magistrates' courts was covered in our consultation exercise, but the proposal was, generally speaking, not supported. It was opposed in particular by the local authorities. We concluded that there could, therefore, well be cases where the powers of the magistrates' courts, which are slightly different from those available to local authorities, under Sections 118 and 119 of the 1980 Act could still be useful.

Therefore, although the Government agree with my noble friend that, in general, local authorities should use powers under Sections 118 and 119, rather than seek an order from a magistrates' court--and we shall continue to emphasise that point in our advice to local authorities--we have been persuaded, mainly by the local authorities themselves, that it would be sensible to leave the court procedure in place for particular cases.

As my noble friend said, it is true that the role of the magistrates' court in the closure and diversion of highways is, if you like, a relic of history; indeed, it goes back a long way. However, in turn, that means that it has wider implications than the provisions contained in this part of the Bill. That may be a matter for future review of highway law generally, rather than dealing with it separately at this point. Although I

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understand what my noble friend is seeking to achieve, I hope that she will agree that we should not entirely exclude the magistrates' court procedure at this stage.

As I understand Amendment No. 340, my noble friend is really trying to ensure some extra flexibility for the Secretary of State. However, I am not sure that this amendment would achieve that aim, because it would apply the regulation-making powers of Clause 48 to BOATs--byways open to all traffic--as well as to restricted byways, thereby extending the powers of the Secretary of State. We do not believe that that is necessary for BOATs. They have been on the statute book for over 30 years. They carry full vehicular rights and they differ from other minor roads only in that their usefulness to walkers and horse riders requires them to be recorded as such on definitive maps.

However, restricted byways are entirely new. The only reason the Government have introduced the powers in Clause 48 is that there is not enough time to consider all the amendments to existing legislation that might be necessary in relation to restricted byways and include them in the Bill. Therefore, this is a prudent "buying time" measure to ensure that current legislation operates effectively in relation to a new kind of highway. We believe that the rules relating to BOATs are sufficient to provide the Secretary of State with the degree of flexibility that my noble friend seeks. I hope, therefore, that she will not pursue her amendment.

9 p.m.

Baroness Lockwood: I thank my noble friend for his reply. I am glad that the Secretary of State will continue to give firm advice to local authorities on the issue. However, I am not quite happy with the fact that the Government have decided to accept the view of local authorities, which want to retain the right to resort to the magistrates' court. For example, at present, the Section 116 procedure is often used to seek closure of paths for crime prevention reasons. But there are new powers under Clause 53 and Schedule 6 to the Bill to enable orders to be made to close or divert paths for similar reasons. That process would be dealt with by the Secretary of State and the inspectorate, rather than the magistrates' court. In the interests of some uniformity and simplicity, surely it would be useful to make byways and restricted byways subject to the same procedure. Nevertheless, I shall read my noble friend's response with care. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton moved Amendment No. 341:

    Page 29, line 11, at end insert ("or subsection (3A)(a)").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 342 to 349. These amendments relate to the powers in Clause 48, which enable the Secretary of State to make regulations amending a wide range of primary and secondary legislation to take account of the creation of restricted byways as a new category

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of highway. There is a large body of legislation relating to highways. It would be impossible to review all the provisions and incorporate all the necessary amendments on the face of the Bill. Because Clause 48 is a wide-ranging power, the Government initially took the view that it should be a matter for the Secretary of State alone, subject to the approval of both Houses.

However, after discussion with the National Assembly for Wales, we have reviewed our position. We now believe that the Assembly should have appropriate powers in relation to Clause 48. Amendments Nos. 343 and 347 would enable the assembly to make regulations under Clause 48 amending local and private Acts that relate only to Wales and amending any secondary legislation that the Assembly currently has the power to amend or revoke. Amendment No. 344 has three further purposes. First, it would require the Secretary of State to consult the Assembly before using his powers under Clause 48 to make provisions having effect in relation to Wales.

Secondly, the amendment would prevent the Secretary of State from using Clause 48 expressly to amend or revoke secondary legislation made by the Assembly without its consent. Thirdly, the amendment would make express provision for the Assembly to submit proposals to the Secretary of State for exercising his powers under Clause 48.

Finally, when laying regulations before Parliament, Amendment No. 349 would require the Secretary of State to lay before each House a document giving details of any consultations with the National Assembly required by Amendment No. 344 and setting out any representations received from the Assembly. Amendment No. 341, and the remaining amendments in this group, are consequential. I beg to move.

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