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Lord Bradshaw: My Lords, I shall listen to one part of the Minister's reply very carefully—when he replies to the point made by the noble Baroness, Lady Byford, on the police's enforcement powers when a right of way is used and a claim has been submitted but not actually determined. I believe that the police have the powers to deal with anyone who uses a right of way for which a claim has been made but which is not recorded on the definitive map, and any feebleness by the police to prosecute those is something on which we should press very hard. There is no doubt at all that the use of many of the rights of way—as the noble Baroness, Lady Byford, said—is quite contrary to the use of the rights of way for horse-riders, walkers and those who wish—and this is what most people want—to enjoy the peace and quiet of the countryside. So I shall be looking in the Minister's reply for a definite statement on what the police are expected to do, and what they can do, about claims which have not been processed and agreed to and the work carried through to a mark on the definitive map.

Lord Cameron of Dillington: My Lords, I thoroughly approve of the Government's intentions in Clauses 66 and 67. I apologise to the House that I was not here to speak on Report. It all seemed to me absurd that the precedent of the passage of a horse and cart should be used to allow motorised traffic to tear up our green lanes. I still cannot understand why we cannot apply the principles involved now. It seems to me to be rather like the Chancellor of the Exchequer introducing capital gains tax and saying that it will not apply to anyone who has notified that they are going to transfer an asset; in other words, it was not going to bite for several years.

Perhaps I may give a local example of the effect of the legislation. In my home county of Somerset, since December 2003 we have gone from an applications backlog of 24 to over 200 in respect of byways open to all traffic. The new cut-off date—and I realise that a deal has been done—of 20 January 2005 means that there will still be a backlog of nearly 100 claims. In other words, the speed of progress is about 16 or 17 claims a year, because of the judicial processes and such, and the new rules will not apply for five or six years in Somerset. I do not think that that is right. So I still believe that 9 December would have been the best cut-off date. That way we could have ensured we had the maximum number of paths, where the pleasures of walking on them remained as they are. So I am rather disappointed and would have preferred the original amendment tabled by the noble Baroness, Lady Byford.

Lord Brooke of Sutton Mandeville: My Lords, I shall speak very briefly and of course I speak in support of
 
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what my noble friend Lady Byford said from the Front Bench. I have only two things to say. The first is that the Minister made much at Report of the principle of fairness and the need to make allowance for when particular things had happened. I cannot help but remark that if the Government had acted earlier, we would not have quite the problem that we have today. Although the Minister is coming well out of today's debate, he is coming well out of a bad situation and one that would have been improved—it is not his fault, as he was not the Minister at the time—if the Government had acted earlier. If they had done, we would not have as much of a backlog as we have. Secondly, the Minister will recall that I asked him on Report whether it was true that there had been a heavy concentration on Cheshire and Wiltshire. He was unable to answer on that occasion and I quite understand why, but I wonder whether he has the information now.

Lord Bach: My Lords, I am grateful for what the noble Baroness, Lady Byford, and the noble Lord, Lord Bradshaw, have said. Of course, this compromise does not suit everybody. There will be those who are not entirely satisfied with it; very few people will be entirely satisfied with it. I appreciate the point that the noble Lord, Lord Cameron, made, but it is our view that this is a sensible and suitable compromise and that the Government have listened to the representations that have been made so powerfully—in this House, in the other place and in postbags. Of course the postbags have gone both ways, but in particular in one way.

I turn immediately to the last point made by the noble Lord, Lord Brooke. The number of claims in Wiltshire is certainly high—there are 85 outstanding BOAT claims. This does not make it the worst, but the figure is high. That does not seem to be the experience in Cheshire, although I do not have the figures for that county.

I shall deal now with the detailed questions, including one that was raised in our last debate and the query put by the noble Lord, Lord Bradshaw. This may take me a little time but I will be as quick as I can. The exemption from prosecution under new Section 34(2A) of the Road Traffic Act 1988, inserted by Clause 70 of the Bill, moves to the purchaser of the property, provided that the way was in use at the time that the RUPP became a restricted byway. The "private right" in Clause 67(4) is also attached to the land.

The noble Lord, Lord Bradshaw, asked whether, if a person has submitted a claim that is still outstanding and would be preserved by Clause 67(3), that person can continue to use that right of way with a motor vehicle until that claim has been determined and whether the police would be able to prosecute that person. Whether it would be illegal to drive on that right of way would ultimately depend on whether the claim is justified—in other words, where the public motor vehicular rights can be proved to exist. Schedule 7 to the CROW Act strengthens Section 34 of the Road Traffic Act, so that a right of way is taken to carry only those rights that are shown on the definitive map and
 
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statement unless the contrary can be proved. In other words, the burden of proof has now been placed squarely on a defendant to prove that public motor vehicular rights exist in order to avoid conviction. So, for example, where a right of way on the definitive map is a presumption, that is correct until proved otherwise.

It has become apparent to us that Schedule 7 to the CROW Act has been widely misunderstood and that many enforcement agencies and rights of way professionals do not appreciate that the strength in Section 34 is already in force and has been since shortly after the CROW Act received Royal Assent. It is for that reason that we have recently published the guidance entitled Regulating the use of motor vehicles on public rights of way and off road: A guide for Local Authorities, Police and Community Safety Partnerships. It provides information to encourage enforcement authorities to make better use of existing legislation.

After commencement of Part 6 of this Bill, where claims are not preserved by Clause 67(3) or where there are no outstanding claims, which is of course the vast majority of cases, those who drive motor vehicles on rights of way that are not already recorded as byways open to all traffic will no longer be able to rely on unrecorded public motor vehicular rights as a defence because those rights will, subject to the exemption in Clause 67(3), have been extinguished by subsection (1). This is a complex area of law and we intend to issue guidance to the police, local authorities and others about the rights of way provisions in this Bill. It will include guidance to assist with enforcement of the law over rights of way which are the subject of outstanding applications for BOATs at the time this part becomes law. When a claim has been submitted but not determined, the prosecuting authorities of course have a discretion whether to prosecute in each case, and the existence of a pending application may be a factor relevant to the exercise of that discretion.

I hope that I have answered all the points raised both in the last debate and today. If not, I shall write to all noble Lords concerned and make available copies of that reply. But so far as the dates are concerned, I am grateful for the attitude taken by noble Lords on the Front Benches and in other parts of the House.

Lord Williams of Elvel: My Lords, does the guidance issued under the CROW Act, which I understand is relevant to both England and Wales, also apply in Wales?

Lord Bach: Yes, my Lords.

Lord Bradshaw: My Lords, will the noble Lord confirm that the prosecuting authority to which he referred at the close of his remarks is not the police or the local authority, but in fact the Crown Prosecution Service? Will he make sure that any guidance issued goes to that service? I can see very well that it is likely to advise that no case will be brought to
 
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prosecution if a claim is outstanding. That really is the nub of the argument that we are trying to put to the Minister.


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