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Lord Kingsland: My Lords, I had misunderstood the noble Lord. He clearly remains intransigent. In those circumstances it is my wish to test the opinion of the House.

8.33 p.m.

On Question, Whether the said amendment (No. 18) shall be agreed to?

23 Nov 2000 : Column 1022

Their Lordships divided: Contents, 41; Not-Contents, 150.

Division No. 5


Allenby of Megiddo, V.
Arran, E.
Astor of Hever, L.
Attlee, E.
Blatch, B.
Buscombe, B.
Byford, B.
Carnegy of Lour, B.
Chadlington, L.
Craig of Radley, L.
Craigavon, V.
Dixon-Smith, L.
Dundee, E.
Gardner of Parkes, B.
Glentoran, L.
Hanham, B. [Teller]
Hooper, B.
Kingsland, L. [Teller]
Luke, L.
McColl of Dulwich, L.
Mancroft, L.
Marlesford, L.
Molyneaux of Killead, L.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Northbrook, L.
Northesk, E.
O'Cathain, B.
Palmer, L.
Park of Monmouth, B.
Peel, E.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Seccombe, B.
Selborne, E.
Shaw of Northstead, L.
Vivian, L.
Waddington, L.
Wilcox, B.


Acton, L.
Addington, L.
Ahmed, L.
Alderdice, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Attenborough, L.
Bach, L.
Barker, B.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Bradshaw, L.
Brett, L.
Brooke of Alverthorpe, L.
Burlison, L.
Carter, L. [Teller]
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Watford, L.
Ezra, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grabiner, L.
Greaves, L.
Greengross, B.
Grenfell, L.
Hamwee, B.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Haskel, L.
Haskins, L.
Hattersley, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hooson, L.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jacobs, L.
Jay of Paddington, B. (Lord Privy Seal)
Judd, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Massey of Darwen, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Mitchell, L.
Molloy, L.
Morgan, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Newby, L.
Nicholson of Winterbourne, B.
Nicol, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Peston, L.
Phillips of Sudbury, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L.
Rodgers of Quarry Bank, L.
Russell, E.
Russell-Johnston, L.
Sainsbury of Turville, L.
Sawyer, L.
Scott of Needham Market, B.
Sharman, L.
Sharp of Guildford, B.
Shepherd, L.
Shutt of Greetland, L.
Simon, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Thornton, B.
Tomlinson, L.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Walker of Doncaster, L.
Wallace of Saltaire, L.
Walmsley, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wigoder, L.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.
Woolmer of Leeds, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

23 Nov 2000 : Column 1023

Clause 42 [References to public places in existing enactments]:

Lord Whitty moved Amendment No. 19:

    Page 27, line 40, after ("done") insert (", or omitted to be done,").

On Question, amendment agreed to.

Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 9.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.45 to 9.30 p.m.]

Proceedings after Third Reading resumed.

Clause 60 [Rights of way improvement plans]:

Lord McIntosh of Haringey moved Amendment No. 20:

    Page 39, line 28, leave out ("which local rights of way provide") and insert ("provided by local rights of way (and in particular by those within paragraph (a) of the definition in subsection (5))").

The noble Lord said: My Lords, I beg to move Amendment No. 20 and to speak at the same time to Amendments Nos. 21, 22, 25 and 31.

Amendment No. 20 arises from a very useful debate on Report on an amendment tabled by the noble Baroness, Lady Miller of Chilthorne Domer, aimed at maximising recreational opportunities for walkers, horse riders and cyclists away from the fumes and danger of motor vehicles. It was clear from the debate that the motive behind the amendment had considerable support in your Lordships' House and we have tabled Amendment No. 20 accordingly.

23 Nov 2000 : Column 1024

The amendment relates to Clause 60(2), which sets out matters which local authorities are required to assess in preparing their rights of way improvement plans. The matters include the opportunities which local rights of way provide for exercise and other forms of open-air recreation and for the enjoyment of each authority's area. Amendment No. 20 would place additional emphasis on the recreational opportunities provided by footpaths, cycle tracks, bridleways and restricted byways; namely, just those types of highways that serve pedestrians, horse riders, cyclists and those using horse drawn carts. The effect, when taken with Clause 60(1)(a) and (b), would be to require authorities particularly to attend to an assessment of such opportunities in their rights of way plans and their statement of what action they propose to take to improve their rights of way network. The recreational interests of non-motorised users would therefore be emphasised on the face of the Bill.

Amendments Nos. 21 and 22 relate to Clause 64, which inserts a new Section 137ZA into the Highways Act 1980. This new section enables a magistrates' court, when convicting someone of wilfully obstructing a highway under Section 137 of the 1980 Act, to order them to remove the obstruction. Failure to comply with such an order will be punishable by a fine not exceeding level 5 on the standard scale, which is currently £5,000. Amendments Nos. 21 and 22 would fulfil the commitment we gave on Report to bring forward amendments to Clause 64 in response to an amendment tabled by the noble Baroness, Lady Scott of Needham Market. The amendment in the name of the noble Baroness, Lady Scott, would have enabled a magistrates' court to order that an obstruction be removed and the costs recovered from the offender. We agree with the noble Baroness's objective, which is to get the obstruction removed as soon as possible, but as we explained at the time, we did not think that her amendment was the most appropriate way of achieving it.

We are proposing an alternative approach. Amendment No. 22 would achieve two important aims. First, it would make the offence of failing to comply with an order of the court to remove an obstruction a continuing offence. There would be fines of up to one-twentieth of level 5 on the standard scale for each day the offence was committed after a first conviction under new Section 137ZA. At present, that would be up to £250 a day. So, if, after being convicted of failing to remove an obstruction by the date specified by the court, a person still failed to take action, he could be prosecuted a second time. If convicted, he would face a fine for each day the obstruction had remained since the first conviction. If, for example, the second conviction was a month after the first, the person could face a fine of up to £7,750. After that, he could face further prosecutions and further daily fines if the obstruction was still not removed.

We believe that this would provide a powerful incentive for a convicted person to remove an obstruction. However, it may be the case that a highway authority would be prepared to remove the

23 Nov 2000 : Column 1025

obstruction itself, provided that it had the power to recover its costs. Highway authorities have powers at common law to remove obstructions from their highways--either because the highway is vested in them, or because it has been decided by a court that there is an obstruction. Amendment No. 22 would provide ancillary power, where these powers were exercised by authorities, summarily to recover their costs from a person convicted under new Section 137ZA. Amendment No. 21 is consequential on Amendment No. 22.

Amendment No. 25 would assist local highway authorities generally in taking action to remove obstructions from footpaths, bridleways and cycle tracks. It relates to Section 300 of the Highways Act 1980 and Section 21(2)(b) of the Road Traffic Act 1988. Section 300 provides immunity to local authorities in relation to statutory provisions that prohibit the use of appliances or vehicles on footpaths, bridleways and footways where they are exercising particular functions, such as cleansing, maintenance and improvement. Section 21(2)(b) makes similar provision by providing for a defence in respect of the offence of driving or parking on cycle tracks.

A judgment by the House of Lords (Goodes v. East Sussex County Council) provides for a narrow interpretation of what the "maintenance" of highways comprises. Amendment No. 25 would clarify that the protection provided to highway authorities by Section 300 and Section 21(2)(b) in the carrying out of their function does extend to the functions of the prevention or removal of obstructions from footpaths, bridleways and cycle tracks, and the prevention or abatement of nuisances or other interferences with such highways.

Amendment No. 31 is consequential upon amendments made to Clause 63 in Committee, which increased the number of new sections in that clause, and upon Amendment No. 22 in so far as this empowers highway authorities to recover the costs of removing an obstruction. Amendment No. 31 would ensure that none of these provisions could come into force in the Isles of Scilly except by order made by the Secretary of State after consultation with the Council of the Isles. I beg to move.

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