My Lords, this is the last group of amendments that I shall move or speak to. After that there will be just a few bullet points and I therefore hope that the Committee will bear with me a little because this is a long and complex group, in which my noble friend Lady Hamwee also has an amendment.
All these amendments are about the types of land where rights of access are provided by legislation, often with an actual or implied right to take part in formal recreation while accessing the land. There are two kinds of such land. The first is areas of land that include commons, village and town greens, and access land under the Countryside and Rights of Way Act 2000, which includes the new coastal access routes and the spreading room between those routes and the sea. I remember that the person who led on the CROW Bill for the Liberal Democrats was my noble friend Lady Miller of Chilthorne Domer. Some of the amendments she moved attempted to place an obligation on councils to publicise areas of access land on their websites. We were told by the Government of the day that that was inappropriate because websites were new and unknown, most councils might not have them, and that they were therefore inappropriate. Now we are told by the current Minister that websites may not be around for very long and are therefore ephemeral. Such is the passage of time. The second type of land is highways, routes, rights of way and other important recreational routes. Some of the amendments in the group cover both types of land but, rather than going through the amendments in detail, I shall take each type in turn.
The first two paragraphs of Amendment 41 state:
“A public spaces protection order may not be made in respect of land which—
(a) appears on a register of commons and of town and village greens”,
or,
“(b) is access land under the Countryside and Rights of Way Act 2000”.
Commons and greens are special places, the rights of access to which are contained in historic law, some of it common law, and in the CROW Act and Commons Act 2006. The CROW Act provides a right to roam on all commons. Village greens and town greens are specifically designated as areas where informal recreation has taken place without permission or hindrance for at least 20 years, and in some cases for centuries. The right to informal recreation on greens is basic to their existence. Restricting such access and activities by the relatively easy administrative process under public spaces protection orders is, frankly, not acceptable. It is possible to have restrictions on greens but such restrictions are carefully worked out and laid down, and difficult to achieve. Commons are also historic and the right of public access is entrenched in the Acts. Often access to and the presence of a common are common law rights, by which I mean common law, not the Commons Act. Again, it is quite unacceptable that these ancient rights can be overturned and that there is only one difficult right of appeal to the High Court.
Amendment 41A concerns something quite different. It is about rights of common, although I do not want to go into great detail on those or we may be here all night. A common typically has an owner, which may be a public authority or a private owner. It also has commoners who are attached to the common, and they have rights of common. Nowadays, it is mainly a grazing right, but there may be ancient rights such as pannage and turbary, which noble Lords can look up in the dictionary. These rights of common belong to the commoners and are quite separate from the rights of ownership of the owner of the common. It would be absurd if these rights, which are laid down, could be overturned by the relatively straightforward administrative procedure of setting up a public spaces protection order, and that ought to be made quite clear.
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Highways which are of real concern here are the rights of way on a definitive map. Several of these amendments are not consistent with each other because they put forward alternative ways of providing safeguards or simply take them out of the legislation altogether. I hope that the Government will start looking at the safeguards. These rights of way as defined under the Wildlife and Countryside Act 1981 are public footpaths, bridleways, the slightly more esoteric restricted byways, and BOATs—byways open to all traffic. The legislative regime is clear. It has been in place for a long time under the Highways Acts and, now, under the Wildlife and Countryside Act 1981. It is possible to close or divert rights of way. Closures and diversions happen all the time, but doing so is complex and the procedures are quite long, and that is deliberate because these are ancient historic rights that ought not to be able to be taken away easily and quickly. As I said earlier, I am on a committee that deals with them. You can appeal if a right of way is closed or diverted and the local
authority has not achieved an adequate consensus, and the appeal is made to the magistrates’ court; you do not have to go galloping off to the High Court, which most people would find impossible. However, there is a fear that some councils will use public spaces protection orders to close such routes.
I have mentioned other sorts of routes which are often found in urban areas—cycleways and paths provided for disabled people. They usually have no statutory protection as such, and in these cases you probably have to rely on the good sense of the local authority. However, I have put them on the table as being a possible problem when local authorities do not behave sensibly.
I want briefly, or perhaps not so briefly, to refer to gating orders. These were introduced in the Clean Neighbourhoods and Environment Act 2005. They never got a proper scrubbing down in scrutiny terms in your Lordships’ House because that Act went into the wash-up at the end of the Parliament and we did not get to discuss them as we might have done. However, they have been relatively successful in most of the cases where they have been brought in. Some 1,700 gating orders have been made. A gating order simply puts gates on the end of a highway—usually a local back street—so that people cannot access it. There is a procedure under the Highways Act 1980, as amended by the Clean Neighbourhoods and Environment Act, for making gating orders, and this Bill subsumes gating orders under public spaces protection orders.
Most gating orders have been uncontroversial. They provide an improvement to community safety and the local environment. They stop people going down the backs of houses when they can perfectly easily go down the front, so no inconvenience is caused. They typically relate to back streets, alleys, snickets or ginnels, depending on where you live. However, some have been very controversial where local authorities have used them in inappropriate circumstances to close down footpaths linking one place to another and there are no satisfactory alternatives. Examples are where routes within urban areas link a main road and a school, a housing estate and playing fields, or routes to shopping centres and so on. There have also been one or two examples where the gating of a local highway in a town has blocked access to the rights of way network in the countryside, and that has clearly been undesirable.
I am not arguing against being able to use public spaces protection orders for gating purposes because that is how the Government now want to proceed. I am asking the Minister whether we can have some really good, genuine safeguards to ensure that they will be used only for those very local circumstances where the purpose is to keep people away from residential property and not to stop people using linking routes—usually footpaths—which are of value to the community. As it stands on rights of way, the Bill removes the basic safeguards in the Highways Act. At the very best, it shifts the balance to enable the easy closure of a right of way for three years, then for it to be extended three years at a time, and eventually for ever. Real problems are involved in conflating gating orders with all rights of way. I am sure that there are ways
around that by which everybody’s objectives can be reached, and I ask the Minister to treat this seriously and to have further discussions about it. I beg to move.