Select Committee on Delegated Powers and Deregulation Thirty-Second Report



Third Supplementary Memorandum from the Department of the Environment, Transport and the Regions


1. The Countryside and Rights of Way Bill was brought from the House of Commons on 16 June 2000. The Department submitted its memorandum on the delegated legislative powers under the Bill to the Committee on 26 June. The Committee reported thereon in its 24th Report of 4 July. On 10 July the Government submitted a supplementary memorandum in respect of one additional delegated power proposed for Part I of the Bill. The Committee reported thereon in its 26th Report of 19 July. On 18 July a second supplementary memorandum was submitted dealing with amendments to or concerning delegated powers in Parts II, III, IIIA (now IV) and IV (now V). The Committee reported thereon in its 27th Report of 25 July.

2. This third supplementary memorandum deals with amendments tabled by the Government for consideration at Report stage. It identifies new delegated powers, amendments to some of those already identified and explained to the Select Committee in earlier memoranda and powers deleted in response to the Committee's recommendations in its 24th Report. The text of these amendments is annexed to this memorandum.


Chapter I: Right of Access

Clause 2(1)/Schedule 2 ( Amendment 47)

3. Paragraph 4(2) of Schedule 2 is a power to amend by regulations the period specified in paragraph 4(1) with respect to dogs on leads on access land. As noted in Lord Whitty's letter to the Chairman of 23 October (copy annexed hereto) this power is deleted as recommended by the Committee at paragraph 13 of its 24th Report.

Clause 17: byelaws (Amendment 89)

4. Clause 17 confers on access authorities a byelaw making power. This was described in paragraph 32 of the 26 June memorandum. The amendments insert a new subsection (6A) which provides that byelaws under clause 17 may be made either with respect to land which is access land or land that the access authority is satisfied will become access land. Byelaws may not be confirmed, however, until the land is access land.

5. The amendment is intended to enable access authorities to make byelaws at an earlier stage, to diminish any delay between the commencement of access and the commencement of byelaws.

Chapter II: Exclusion or restriction of access

Clause 21: Exclusion or restriction at discretion of owners and others (Amendment 116)

6. Clause 21(7) is a power to vary the days on which an 'entitled person' is not permitted to effect a discretionary exclusion or restriction. The power was referred to at paragraph 34 of the 26 June memorandum. As noted in Lord Whitty's letter referred to above, this power is deleted in accordance with the Committee's recommendation at paragraph 7 of its 24th Report.

Chapter I: Right of access

Clause 2(1)/Schedule 2 (Amendment 148)

7. Paragraph 3 of Schedule 2 is a power to amend the list of restrictions in paragraph 1 and the associated definition provisions in paragraph 2. This power was the subject of a recommendation by the Committee in its 24th Report. The recommendation was that the power should be deleted (see paragraph 12).

8. The Government responded to this recommendation in Lord Whitty's 23 October letter to the Chairman. The Government does not accept the recommendation that the power be deleted, for the reasons set out by Lord Whitty in that letter. The Committee noted that if this power were to remain in the Bill, it ought at least to be made subject to the affirmative resolution procedure. Accordingly, an amendment has been tabled to clause 41 (previously clause 40) such that regulations under paragraph 3 shall not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament: clause 41(3).


Schedule 5: paragraph 7 (Amendment 159)

9. An amendment to section 57(1) of the Wildlife and Countryside Act 1981 will remove the source of the power to prescribe by regulation the scale of the map accompanying an order modifying a definitive map from this subsection. The power to so prescribe is then achieved by an amendment to section 57(2). This rearrangement is effected by additional provisions in paragraph 7 of Schedule 5 to the Bill (paragraphs 7(1A) and (1B)). The amendments mean that regulations may prescribe not only the scale of maps prepared under section 57(1) but also, the scale of consolidated maps under the new section 57A(1), the latter of which is inserted by paragraph 8 of Schedule 5.

Schedule 6: paragraph 1 (Amendment 168)

10. An amendment to the Highways Act 1980 inserts the new section 31A. Section 31A(1) requires the appropriate council to keep in such manner as may be prescribed, a register containing such information as may be prescribed with respect to maps and statements deposited and declarations lodged with that council by owners of land as regards ways over their land (see section 31(6) of the 1980 Act). Section 31A(2) gives power for regulations to be made regarding keeping the register in more than one part and subsection (3) empowers the Secretary of State to make regulations with respect to the removal of entries from the register or any part of the register.

11. The 26 June memorandum contains a general description at paragraphs 47 to 51 of regulation making powers in the 1980 Act and the 1981 Act insofar as amendments effected by the Bill are concerned.

Schedule 6: paragraph 17A (Amendment 181)

12. Section 344 of the 1980 Act (Application to Isles of Scilly) is amended at subsection (2)(a) by the insertion of the new sections 135A and 135B into the list of provisions in respect of which the Secretary of State may by order under section 344(3) (discussed at paragraph 114 of the 26 June memorandum) apply them to the Isles. This is effected by the insertion of paragraph 17A into Schedule 6 to the Bill. New section 135A and 135B of the 1980 Act are described and explained at paragraph 103 of the 26 June memorandum.

Clause 65: Erection or improvement of stiles, etc. (Amendment 197)

13. An amendment to clause 65 inserts a reference to the new section 147ZA (Agreements relating to improvements for benefit of persons with mobility problems) of the 1980 Act into the same provision of the 1980 Act as discussed in the previous paragraph - that is, section 344(2)(a).


Schedule 9: paragraph 1 (Amendments 210 and 211)

14. The amendments introduce at paragraph 1 of Schedule 9 of the Bill the new section 28R of the Wildlife and Countryside Act 1981. Section 28R(1) empowers English Nature (or the Countryside Council for Wales) to make byelaws for the protection of sites of special scientific interest (SSSIs). Such byelaws may also apply to Crown land which is, or forms part of, a SSSI if the appropriate authority consents: amendment to paragraph 6 of Schedule 9 effecting an amendment to section 67 of the 1981 Act.

15. Under section 28R(2) the various purposes for which byelaws may be made under section 20 of the National Parks and Access to the Countryside Act 1949 are applied to SSSI byelaws, together with the restriction that such byelaws are not to interfere with the exercise by any person of a right vested in him as owner, lessee or occupier of land that is a SSSI. Further, a right to compensation contained in section 20(3) is to apply with respect to SSSI byelaws.

16. Finally, section 28R(2)(b) ensures that the standard provisions regarding the making of byelaws also apply to SSSI byelaws, by applying section 106 of the 1949 Act. Section 28R(2)(b) additionally applies section 107 of the 1949 Act, which augments the compensation provision in section 20(3), already attracted by section 28R(2)(a).


Schedule 13: paragraphs 1 and 5 (Amendment 239 to 241)

17. The delegated powers contained in Part IV (previously Part IIIA) of the Bill were described and explained in the 2nd supplementary memorandum at paragraphs 20 et seq. The power to establish by order a conservation board is referred to at paragraph 21 of that memorandum. The relevant clause now appears as clause 79(1), supplemented by subsection (4). Schedule 13 is also relevant, dealing, inter alia, with the status and constitution of boards.

18. Paragraph 3 of Schedule 13 will be amended so that an English conservation board will have such number of parish members as may be specified in the 'relevant order' (defined in paragraph 1 of that Schedule). Instead of being appointed by the Secretary of State, these members are to be appointed in accordance with the provisions of the relevant order by either parish councils or parish meetings. This will be achieved by amendment to paragraph 5(1) of Schedule 13.


Clause (Local access forums) (Amendment 253)

19. This is a new provision dealing with what will be known as "local access forums". The forums will have an advisory function in relation to the improvement of public access to land for the purposes of open air recreation and enjoyment of the land: subsection (4). They will advise the local highway authority and for National Parks, the National Park authority, as well as any body exercising functions under Part I in relation to the subject land: subsection (4). Subsection (6) sets out the factors to be taken into account by forums when carrying out their advisory functions.

20. The Secretary of State and the National Assembly for Wales may make regulations governing the establishment by local highway authorities and National Park authorities (to be known as 'appointing authorities') of local access forums for their area (or each part of their area): subsection (1). However, such regulations may not be made with respect to an area (or part of an area) for which the Secretary of State (as respects England) or the NAW (as respects Wales) has directed that subsection (1) does not apply: subsection (8).

21. Subsection (4)(d) provides that the Secretary of State and the NAW may make regulations that prescribe other bodies to whom a particular local access forum is to provide advice. Subsection (4) also gives the Secretary of State and the NAW the power to prescribe by regulation additional subject matter in respect of which a local access forum for a particular area shall advise. These powers help to provide the flexibility for which the forums have been introduced. Different areas will have different characteristics (nature and amount of access land, existence of other publicly accessible land, access land owned by the Crown, prevailing land use etc.) and these powers will enable the forums to suit the characteristics prevalent in a particular area.

Clause (Local access forums: supplementary) (Amendment 255)

22. This clause amplifies the regulation making powers in clause (Local access forums). Subsection (3) of clause (Local access forums) provides that the members of a forum shall be appointed by an appointing authority in accordance with regulations. Subsection (1) of clause (Local access forums: supplementary) provides that such regulations may permit appointing authorities to appoint members appearing to be representative of persons of a specified description or of any specified body. Subsection (1) also empowers regulations to provide for the establishment of joint access forums.

23. Subsection (1) is designed to facilitate the flexibility and responsiveness of local access forums to local conditions.

24. Subsection (2) provides that the regulations made under clause (Local access forums) must provide for the appointment of persons who appear to be representative of users of local rights of way or the right of access in clause 2; and owners/occupiers of access land or land over which local rights of way subsist. The importance of having these groups represented on forums is underlined by the provision in subsection (4) whereby when making regulations under (Local access forums), the Secretary of State and the NAW must have regard to the desirability of maintaining a reasonable balance between the number of user representatives and owner/occupier representatives on a forum.

25. Regulations made under clause (Local access forums) may include such supplementary or incidental provisions as appears to be necessary or expedient: subsection (5).

26. Regulations made under clause (Local access forums) are to be made by statutory instrument and as respects the Secretary of State, are to be subject to negative resolution. In the light of the various provisions governing the nature and subject matter of the regulations under clause (Local access forums), especially as amplified by clause (Local access forums: supplementary), the Government considers the negative resolution procedure to be the appropriate degree of Parliamentary scrutiny.

31 October 2000

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