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8.43 pm
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Rooker): My Lords, I, too, congratulate the noble Lord, Lord Greaves, on bringing forward the debate. I do not have many interests to declare, but in the past couple of weeks I have walked both in the Cotswolds and in the Lake District, so that is where I am coming from.
Let me give the House a few facts. I am not criticising the noble Lord, Lord Addington, but anyone listening to him would think that we are closing down walking in the countryside. It is worth putting on record that in England there are 94,000 miles of footpaths, 20,000 miles of bridleways, 38,500 miles of restricted byways and 2,500 miles of byways open to all traffic. A 1 per cent reduction in the sedentary population in the UK could provide almost a £500 million saving in averted healthcare costs. That is a big cost. Perhaps we ought to be doing the debate standing up rather than sitting down. That is where we are coming from—there is a great benefit to walking and, as the noble Lord, Lord Taylor, says, the countryside looks quite magnificent at present.
I have some comments but I certainly have not got all the answers. The Government’s position has been clearly set out in answer to Questions in both this House and the other. The latest that I have in my notes is a fairly substantial Answer in the other place from 8 May.
We recognise the importance and value of the rights of way network. The health and quality-of-life benefits of walking, cycling and horse riding are well known. I could give the House the figures on the
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The rights of way provide important social and economic benefits. They can be functional journeys as well. But they are not all necessarily in the countryside. My former constituency was about 16 square miles in a very urban part of Birmingham, but it was littered with rights of way. They are usually not very well lit, so people are always campaigning for reassurance from the council that they are safe to use. That is the issue in urban areas. Traditionally they are away for other forms of traffic, so they can play a significant part in reducing accidents, particularly in urban areas.
There is a big issue of rights of way being a key ingredient for tackling congestion and reducing dependency on private car use, particularly for short journeys. As the noble Lord said, short-cuts to the shops are very important. But we need to have a rights of way network that is relevant to people’s everyday lives, otherwise the rights of way would not be fully utilised and we would lose the benefits. I was not involved in the passing of the Countryside and Rights of Way Act 2000, because I was in another department. The CROW Act introduced the rights of way improvement plans. In order to ensure the long-term sustainability of the way network we integrated these with local transport planning.
The rights of way improvement plans are only a part of the process of developing a rights of way network that serves current and future needs. The 25-year time limit on making claims to changes to the definitive map and statement that the noble Lord, Lord Greaves, referred to was introduced to assist this process. The date is there for a reason. But this time limit, introduced by Sections 53 to 56 of the Countryside and Rights of Way Act 2000, applies only to historic rights of way; that is, those that were in existence before 1949 when the definitive map and statement were introduced by the National Parks and Access to the Countryside Act. These provisions would not prevent the recording of rights of way created after 1949. As the noble Lord said, rights of way are being created regularly.
The provisions in Sections 53 to 56 have not yet been implemented and we would not seek to implement them without undertaking a full consultation. The 25-year limit—that is the 2026 cut-off point—had two principal aims. The first was to give landowners and occupiers more certainty about whether public rights of way existed over their land. The noble Lord, Lord Greaves, referred to this but not in such technical phrasing. The second was to provide an impetus to getting the definitive map and statement completed within a foreseeable time frame. In looking to provide a network that meets the current and future trend, rights of way that already exist but are unrecorded represent a significant resource on which to draw.
Finding the legal evidence necessary to add these unrecorded rights of way to the definitive map and statement under the current legislative framework is by no means an easy task. All three noble Lords who have spoken have made that quite clear from practical
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The agency and its successor body, Natural England, has also tried a systematic approach—a trawl through all the archives by professional researchers. While local authorities have appreciated the benefits that this approach brought, it did not produce rights of way claims that could be processed without significant further investigation by the local authority. Moreover, the establishment and recording of rights of way is—and this is a very polite and technical way of putting it—an emotive, contentious and increasingly litigious area, and a very exacting standard of legal evidence is required to see through a successful application, hence the delay on all the inquiries, as noble Lords have mentioned. It now therefore seems that, under the current procedures for recording rights of way, many local authorities would not be able to cope with the number of claims that would be generated.
Research into rights of way has not been attempted on that scale. Much has been learned, however—and the three counties have been referred to. For example, we now know that many rights of way are not lost; they are actually in daily use but they are simply not recorded. That is quite an important point. We are talking only about rights of way from before 1949. But we also recognise the real risk that, where lost rights of way are discovered, they may now run through dwellings and other properties and be quite incompatible with the current use of the land. That can happen. It is no excuse for not looking for them—I make that absolutely clear—but the current mechanism for dealing with these issues may not be adequate because of that point.
We recognise, too, a risk that systematic research generates a lot of inconclusive evidence that can add uncertainty about what rights exist—hence nothing has been added to the map, although there are half a dozen claims in one council ready to go forward as well as another hundred or more that could possibly go forward. Because of these potential difficulties, Natural England undertook a review of the work and concluded that it should withdraw from active research and instead try to develop consensus among stakeholders about the best way forward, through an independently chaired stakeholder working group. This is in the process of being set up. It will consist of 15 members—five from local authorities, five from user groups and five from land managers, with an independent chair. It will be tasked to report at some time in 2009, although I do not have a precise date on that. It will not be a rush job; it will probably be towards the latter part of next year.
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In the light of this, the Government have given an undertaking that the implementation of the relevant Sections 53 to 56 of the CROW Act, which are the provisions that would extinguish any historic rights of way not shown on the definitive map and statement by 2026, will not be pursued at least until the stakeholder group proposed by Natural England has reported its conclusions. So there is no prospect of any jumping the gun. We are not at this stage committing to any further legislative reform, which includes any changes to Sections 53 to 56 of the Act. We value the rights of way network and recognise the need to ensure that it is protected and enhanced.
I have a small tag here on my speaking note which I call tick-tock. The natural question that would be asked about this by those outside is whether we are genuine about the stakeholder group. We will not move on the issue until we get the results from the stakeholder group. I understand that the three parties that will come together in the stakeholder group are very happy with the process and the way forward. There is a degree of consensus that, if the present system does not work, we will find another way to do it. But the clock is ticking on the 25-year limit, as was implied in the remarks of the noble Lord, Lord Greaves. It is now less than 20 years away and, as the legislation stands, the cut-off date prescribed by Section 56 is 1 January 2026. That can be extended by regulations, but only for the five-year limit up to 1 January 2031. Therefore, unless the provisions are amended by further primary legislation, the clock will continue to tick. However, the provisions that introduce the cut-off date are yet to be implemented and, as I have said, we have undertaken not to pursue implementation until there is a proposed stakeholder group.
There is a degree of uncertainty, but we still have a long way to go. The fact is that the stakeholder group will have the parties who are central to making these decisions as members. I know the groups, but not the individuals, and they know that the clock is ticking. In a way, that may give them an incentive to get cracking. If the cut-off has to be extended, an order that runs for five years would make up for the delay that we have just suffered in the last period, which is a bit more than five years. However, primary legislation would be required to knock that out.
As the years tick by, this issue will have to be addressed and the next stopping-off point to get it checked over is when the stakeholder group reports. It will be fully transparent and disclosed—there is no reason for it not to be—and then properly consulted. As I have said, there would have to be a full consultation anyway before the Government moved on Sections 53 to 56, even if they were minded to implement or use regulations.
This thing is not going away. The chances are—and I am thinking aloud now, because of the issue of legislation—that, if the stakeholder group reports, let us say, at some time next year with a decision on how to proceed on consulting on Sections 53 to 56, within a couple of years we are going to get a solution to the way forward. That may or may not require primary legislation, but we need a certain date in the first place
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This is a sad state of affairs, in a way, as it has not worked out as intended. Yet as I have said elsewhere—and as we were once informed by the management group at Templeton College before we became Ministers—it is never too late to avoid making a bad decision. In this case, the decision to start the research was there but enough evidence came out of it to say, “Hang on a minute, this is not the way forward”. We have to find another way.
Lord Greaves: My Lords, before the Minister sits down, could he comment on the Section 54 exceptions and whether the Government might make regulations under them to deal with urban ones?
Lord Rooker: No, my Lords, because I have spoken about Sections 53 to 56, which are taken as a group. We have no intention on moving on any of them until after having that stakeholder group.
Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure until eighteen minutes past nine.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.57 to 9.18 pm.]
European Union (Amendment) Bill
Lord Waddington moved Amendment No. 121:
Nothing in this Act or the Treaty of Lisbon shall affect or be construed by any court in the United Kingdom as affecting the supremacy of the United Kingdom Parliament to make or unmake laws or regulations applicable in the United Kingdom.”
The noble Lord said: In the absence of my noble friend Lord Blackwell, it might be appropriate for me to talk to my Amendment No. 130A, which is the last in this group. I am very disturbed because my colleague in this matter, if I may so call him, the noble Lord, Lord Neill of Bladen, is not yet present, but he will be here shortly. I should say now that he has already given me some very wise advice. My advice is that noble Lords should pay a lot more attention to what he says than to what falls from my lips if there is any difference between us.
I start with the well known case of Thoburn v Sunderland City Council, which is relevant to this matter. In that case, Lord Justice Laws referred to the European Communities Act 1972 as a constitutional statute, but that does not mean that it cannot be repealed or disapplied in part by clear words in a later Act. With the 1972 Act, there was, in the words of Lord Bridge of Harwich in the Factortame case
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“If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty—
that is, the treaty of the European Union—
- “or any provision in it or intentionally of acting inconsistently with it, and says so in express terms, then I should have thought it would be the duty of our courts to follow the statute of our Parliament”.
There are other passages in the Thoburn judgment which make one wonder whether this will always be the view of our courts. It therefore seems that if we do not soon assert that our Parliament can still pass laws inconsistent with our obligations under the treaties—and if we do not, in fact, pass any such laws—we will sooner or later lose the right to do so. It is a matter of great regret.
Lord Thomas of Gresford: Is the problem not that we have incorporated European law into the domestic law of the United Kingdom, and the only way to go against it is to repeal the 1972 Act which did that? It is not a question of looking into the future as to what further matters may come up, and Parliament taking a different view. We would have to go back to the 1972 Act and repeal it, taking it out of domestic law.
Lord Waddington: I am following the exact words used by Lord Denning, who said:
“If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it, and says so in express terms, then I should have thought it would be the duty of our courts to follow the statute of our Parliament”.
In other words, if we were to state in absolutely explicit terms that it was our intention to legislate, knowing full well that it was inconsistent with the 1972 Act, the courts would accept that and would not attempt to say that the Act of Parliament in question was of no effect. I am sure that is exactly what Lord Denning said. There is no doubt; I have quoted the words twice.
Lord Thomas of Gresford: With the greatest respect, Lord Denning may have said that and, obviously, a future, inconsistent, Act of Parliament could be passed, but it would be of no effect unless, at the same time, there was an explicit repeal of the 1972 Act.
Lord Waddington: I do not accept that for one moment. It is absolutely plain at the present time, although I would add the caveat that things could quickly change because certain passages in a recent judgment by Lord Justice Laws suggest that things are changing and that the time will come when the courts will say that the European Communities Act 1972 has a special character and is an Act of such constitutional significance that nothing can be done about it. I am talking about the law as it is now. If the
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I see that the noble Lord, Lord Lester, wishes to intervene and I shall be delighted to give way to him. I am very conscious of the fact that I was rather discourteous to him the other night, which I put down to overexcitement, deafness and the knowledge that the House wished to come to a conclusion. But that makes me doubly glad to give way to him now.
Lord Lester of Herne Hill: I am very grateful. I am tempted to quote from “A Midsummer Night’s Dream” and say that the noble Lord is as wise as he beautiful. But I shall not do that, because it might be considered improper.
Whatever Lord Denning said in this House as a parliamentarian is not the law. The law is what is stated in the Appellate Committee by the Law Lords. As I attempted to say briefly, it is absolutely clear beyond argument, not only in Lord Denning’s Court of Appeal in the case of McCarthys v Wendy Smith, he made the supremacy of European law absolutely plain, but he also set aside in that case the part of the Equal Pay Act that conflicted with an equality directive, and explained why. In Factortame, Lord Bridge for a unanimous House of Lords displaced the discriminatory provisions of the Merchant Shipping Act and explained why. In the EOC case, another Appellate Committee displaced the provisions of an old employment protection Act as being inconsistent.
In all those cases, they explained the relationship, not in this House as parliamentarians, but as our final court. All that they said echoed similar judgments by the European Court of Justice. If Lord Denning in advanced years began to say political things here, they are not of the same judicial weight as when he acted as a judge. When he acted as a judge in the Court of Appeal, he made it absolutely clear. I suggest that one should focus on what he and the House of Lords said as a court, and the European Court of Justice. All of them said exactly the same thing. With respect, it is hopeless to suggest that there is any lack of clarity.
The position is that our sovereign Parliament has agreed, exercising its sovereignty, that so long as we remain members of the European Community/Union where European Community law reigns, in the sense that it applies in a particular area, any inconsistency in legislation or judicial decision or administrative action must give way. It is also clear that no member state can reply on its own constitutional order as an excuse for doing anything inconsistent with the paramount law of the European Community, now the European Union. Perhaps I may say that all that is now in any law school regarded as absolutely straightforward for any law student.
Lord Waddington: If Lord Denning is looking down on us he would be very displeased to hear that his utterances were political, because they were nothing of the sort. What the noble Lord is saying is based on his belief that the European Communities Act has already acquired a special status and is quite unlike any other Act of Parliament except, perhaps,
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It is a matter of enormous regret that with every day that passes it looks less and less likely that this House will do its duty and insist on the Members of the other place honouring the promises they all made to their constituents that there would be a referendum on the matters originally in the constitutional treaty and now in the treaty of Lisbon. If people are going to break their promises to their constituents—and are encouraged to do so by Members of this House—there should be some kind of safety valve to deal with the situation which will then arise.
If there is no referendum, it is not altogether unlikely that after the next general election there will be returned to Parliament a party with a clear mandate to renegotiate parts of this treaty, and that in office there will be a Government in a position to secure the passage through Parliament of legislation which reflects the people’s wishes—which they have not so far been allowed to express and which Members of this House seem determined to prevent them expressing—but which may be inconsistent with the 1972 Act and our treaty obligations.
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