Select Committee on Delegated Powers and Deregulation Twenty-Fourth Report


4 JULY 2000

By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.




1. The bill introduces a right of access to mountain, moor, heath and down, amends the law about rights of way, strengthens the protection for sites of special scientific interest and provides extra powers in connection with prosecutions for offences against wildlife. The Department's Memorandum, printed in Annex 1 to this report, contains a guide to the bill and a detailed commentary on the delegated legislative powers it contains. The majority of those powers can properly be described as confined to procedural matters where both delegation and Parliamentary control are appropriate and the Committee has not found it necessary to comment further on them. Included in this category are the powers in clauses 5, 11, 16, 21, 57 and 65 and Schedules 2 (paragraph 6), 5 (paragraphs 2, 6 and 7) and 6 (paragraphs 3, 6, 7, 10, 11 and 17). In this report the Committee discusses those powers which are subject to affirmative procedure and the more significant of those powers which are subject to negative procedure. The power to modify the bill in its application to the Isles of Scilly (clause 74) and the commencement order are, as is appropriate, not subject to Parliamentary control.

affirmative powers

2. Clause 3(1) gives power by order to amend the definition of "open country" in clause 1(2) so as to include coastal land or coastal land of any description. Coastal land is defined in clause 3(3). Any exercise of this Henry VIII power will open coastal land to public access and in the Committee's view it is clearly right that Parliament should consider the proposed exercise of the power under the draft affirmative procedure.

3. Clause 48 enables regulations to amend existing legislation (primary and secondary) affecting highways to adapt that legislation for its application to restricted byeways. These are a new category of highway created by clauses 43 to 45 and replace the existing roads used as a public path. They are, in essence, highways over which there are public rights of way on foot, on horseback and by vehicles other than mechanically propelled vehicles. Paragraph 57 of the Memorandum explains that the creation of a new category of highway makes it necessary to give detailed examination to extensive existing highway legislation to determine what provisions are appropriate to apply to these highways. The Committee considers that affirmative procedure is clearly appropriate for this Henry VIII power.

other powers

4. Clause 10(3) is a Henry VIII power allowing changes to be made to the timetable for periodic review of maps in "conclusive form" showing registered common land and open country. In view of the very limited scope of the power the Committee considers that negative procedure is appropriate.

5. Clause 11 provides for regulations relating to maps. These supplement the provisions of clauses 4 to 10 and are mostly concerned with procedural matters. Subsection (2)(j) is concerned with "the manner in which [appeals under clause 6] are to be considered". Appeals have to be considered by the Secretary of State or the Welsh Assembly. The Memorandum does not explain what is intended but it seems likely that the regulations will allow the appointment of persons to hear representations and report to the minister or the Assembly and that the regulations will not deal with matters such as the admissibility of evidence and the burden of proof. On that basis the Committee considers that negative procedure is appropriate for all regulations under the clause.

6. Clause 17 allows access authorities to make byelaws for the preservation of order, the prevention of damage and "for securing that persons exercising the right [of access] so behave themselves as to avoid undue interference with the enjoyment of the land by other persons". Byelaws require confirmation by the Secretary of State or the Welsh Assembly but are not statutory instruments. In this they resemble byelaws made by local authorities under the Local Government Act 1972 and the provisions of that Act about byelaws are applied by subsection (5). The Committee sees no need to comment on this.

7. Clause 21(7) is a Henry VIII power allowing the amendment of subsection (6) which lists the days which cannot be included in any period during which the owner of land excludes or restricts access under the clause. The Committee sees clause 21 as part of the balance which Parliament has to strike between the rights of landowners and the need of the public to have access to the countryside. As the clause stands, a landlord can "close" his land to the public on up to 28 days in a year by giving notice as provided in subsection (1) but he cannot do so at weekends or on the public holidays listed in subsection (6). The Henry VIII power in subsection (7) could be used to allow week-end closure at one extreme or, at the other, to prohibit closure on any Friday, Saturday, Sunday or Monday. Presumably the power is intended to allow the substitution of other days of public celebration (though if these are made bank holidays they automatically come within subsection (6)). If the power is intended to be used in this way and the Bill can be amended to limit it accordingly, negative procedure is appropriate. If it is to be unlimited, the House may see the power as wholly unacceptable.

8. Clause 30 provides for regulations relating to exclusion or restriction of access. Subsection (1) lists the matters which may be covered by the regulations. The majority of these are procedural but (k) to (m) relate to appeals under clause 28. Those are appeals by persons interested in land whose applications under clause 22 or 23 or representations under clause 25(4) have not been successful and the appeals lie to the Minister of Agriculture, Fisheries and Food, the Secretary of State or the Welsh Assembly. Our comments on clause 11 apply here also.

9. Clause 36(6) is another provision allowing regulations to make provision as to the manner in which appeals are to be considered. Our comments on clause 11 apply here also.

10. Clause 50 supplements clause 49 which provides for the extinguishment of unrecorded rights of way. Clause 49(1)(c) excludes from the operation of the clause an "excepted highway" as defined in clause 50. Subsection (1) lists three kinds of footpath or bridleway and paragraphs (d) and (e) allow others to be added by regulations made by the Secretary of State (or the Welsh Assembly). Similarly subsection (5)(c) and (d) allow public rights of way to be excepted by other regulations. The Committee considers that negative procedure (provided by subsection (6)) is appropriate.

11. Clause 52 provides the cut-off date for clauses 49 and 51. Subsection (1) specifies 1 January 2026 but regulations under subsection (2) can substitute a later date and may specify different days for different areas (subsection (3)(a)). The Committee considers that negative procedure (provided by subsection (6)) is appropriate for this Henry VIII power particularly as subsection (3)(b) imposes a five year limit on postponement.

12. Schedule 2 makes provision for the restrictions to be observed by members of the public exercising the right of access under the bill. Paragraph 1 lists those things which such a person must not do; paragraph 2 supplements paragraph 1(j), (o) and (p) and paragraph 3 allows regulations to amend paragraphs 1 and 2. In our comments on clause 21 we have referred to the balance that has to be struck between the rights of landowners and the needs of the public. Schedule 2 is an essential part of that balance. In deciding whether to grant rights of public access to land, Parliament will wish to know the limitations on those rights and paragraph 1 contains significant limitations. The Committee draws attention to some of those restrictions in order to show their importance to the balance which has to be struck. Sub-paragraph (o) denies the right of access to a person who intimidates persons on the land so as to deter them from any lawful activity or who obstructs or disrupts such activity. Sub-paragraph (p) similarly restricts those who actions disturb, annoy or obstruct any person engaged in a lawful activity on the land whatever their intentions may be. These are only examples. We could point to most of the other provisions as being significant and which ought to remain on the face of the bill. If the Henry VIII power in paragraph 3 were used to remove any of those sub-paragraphs it would produce a significant shift in the balance against landowners. The Committee invites the House to consider whether it is appropriate to delegate a power which could change the basis on which Parliament granted the right of access conferred by clause 2. We accordingly recommend the deletion of paragraph 3 of Schedule 2.

13. There is another Henry VIII power in paragraph 4(2) of Schedule 2 but this is limited to changing the period during which a dog may not be taken on to the land unless it is kept on a lead. The Committee's comments on clause 21 and paragraph 3 of Schedule 2 are relevant here also. The Committee sees the requirement that dogs must be kept on lead if brought on access land between 1 March and 30 June as part of the balance which should not be altered by delegated legislation. If the House accepts our recommendation that those powers should be deleted, then paragraph 4(2) should go too.

14. Schedule 5 is concerned with definitive maps and statements and restricted byeways. Paragraph 4 inserts section 54A in the Wildlife and Countryside Act 1981 and subsection (7) of that section allows an order to make amendments and repeals in the 1981 Act once the cut-off date for modifying the definitive map has passed. In the Committee's view this Henry VIII power is there to "prune dead wood", and negative procedure is appropriate.

15. Schedule 6 makes amendments to earlier legislation concerned with the stopping up and diversion of highways. Paragraph 7 inserts sections in the Highways Act 1980 and new section 121E(7) and (8) allows regulations to make "further provision" about appeals under new section 121D(1). The Committee regards negative procedure as appropriate for this power.

16. Paragraph 4 of Schedule 6 inserts a new section 118B in the 1980 Act about the stopping up of footpaths and bridleways for crime prevention purposes. Subsection (1)(a) applies to areas designated by order of the Secretary of State. No Parliamentary procedure applies but paragraph 79 of the Memorandum promises an amendment at Committee Stage to apply negative procedure.

17. Schedule 8 makes amendments to the Wildlife and Countryside Act 1981. New section 28D (inserted by paragraph 1) deals with appeals in connection with consents and subsection (6) allows regulations to make provision about appeals. There is a similar provision in new section 28J(8). The Committee sees negative procedure as appropriate for both.


18. The Committee welcomes the promised amendment to apply negative procedure to the power in paragraph 4 of Schedule 6 (new section 118B(1)(a)). We have suggested that the powers in clause 21 and paragraphs 3 and 4 of Schedule 2 affect the balance between the rights of landowners and the needs of the public which Parliament has to strike in creating the right of public access. We recommend the deletion of the powers in clause 21 and paragraphs 3 and 4(2) of Schedule 2.

19. If, however, the House disagrees with our recommendations, and considers that those powers should stay in the bill, then clearly they should be made subject to the affirmative procedure.

20. The Committee considers that no other amendment is necessary either to the delegated powers in the bill or to the parliamentary control provided for these powers.

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