Deregulation Bill

Lord Judd Excerpts

Tuesday 28th October 2014 Grand Committee

[Lord Skelmersdale]

My Lords, I was in the happy position, as a humble Back-Bencher, of listening to my noble friend on the Front Bench taking that Act through, and I think she would agree that many of the arguments that we heard then have been repeated today by the noble Lords, Lord Christopher and Lord Rooker, and the right reverend Prelate, and she managed to satisfy them then. It is quite clear to me that what goes around comes around, and that today history—to an extent, anyway—is repeating itself.

As I said, 20-odd years ago I supported many of the things in this Bill, but I also supported an amendment similar to that of my noble friend Lord Borwick. I had better make the same declaration of non-interest as I did then: although a horticulturalist by training and the director of a mail-order firm in the industry, I have never had anything to do with garden centres other than as a student when I spent three weeks weeding plant pots. We do not even sell to garden centres, so to that extent I have no interest.

The reason why I supported an amendment then, and now, is that I am told by the Horticultural Traders Association that, in the past 20 years, by not allowing garden centres to be totally deregulated, my industry, which employs 28,400 people and contributes £9 billion to the UK economy, has missed out on a vast earning capacity that today amounts to £75 million, which, by virtue of the VAT element of such sales, means a loss of £15 million annually to the Exchequer. At a time when necessary cuts are made every day to public services, I have no doubt that another £15 million would come in very handy.

Tempting though it is, I will not repeat the facts that my noble friend stated in moving his amendment, but I will briefly outline what happened some 20 years ago. The amendment that I supported, and which was passed by your Lordships’ House, was to totally deregulate both garden centres and DIY shops. The Members of another place produced a very short reason for disagreeing with your Lordships: they did not consider it,

“desirable to exempt shops of the kind described in the amendment from restrictions on Sunday opening”.

It is clear from rereading Commons Hansard that MPs of those days believed that the amendment went too far by including shops that sold,

“materials and tools suitable for use in the construction, maintenance, repair or decoration of buildings”.—[Official Report, 30/6/94; col. 926.]

So Lord Hacking, who moved the original amendment, tabled another applying only to,

“trees, shrubs, plants, bulbs or seeds”,

or, “garden supplies or equipment”.

In the debate, the House again divided and the amendment was defeated, I believe for the following reasons: first, that on that day your Lordships had lost the opportunity for ping-pong; and secondly, that shops selling those products also—as the noble Lord, Lord Rooker, just pointed out just—sell a whole range of other products, such as books, furniture and paint, to name but a few. It would have been an enormous job for local authority inspectors to ascertain whether the shop in question was “wholly or mainly”, to use the words in the Act, selling the products in question.

As I said, all that was 20 years ago. Membership of your Lordships’ House has changed drastically in that time and, after several general elections, so has the composition of another place. It is certainly time to ask the Commons once again. I hope that my noble friend will pursue this through to Report. He may well be successful in this House, but I would caution him quite seriously, as noble Lords opposite have done, not to use such a broad term as garden centres. To my mind, the term needs to be refined.

While I am on my feet, I have are two things that I should like to pick up. First, I do not think that the noble Lord, Lord Christopher, appreciated that the words “wholly or mainly” are actually in the Act, so will cover such exemptions. I would say to the noble Lord, Lord Rooker, that, under the Act, shops are allowed to open for only six hours between the hours of 10 am and 6 pm. If I were a gardener, it is quite likely that I would like to go and buy my bulbs, seeds or whatever at 8.30 am or 9 am on a Sunday. That is one of the reasons why deregulation should at the very least be considered in this area.

[Lord Judd (Lab)]

My Lords, this has been an interesting debate. One of the things that strikes me forcefully is that the existing legislation was introduced in the context of a lot of controversy, argument and differing points of view. It has prevailed, to good effect, for a good number of years now, and those who crafted the Bill, introduced it and took it through the House should be commended. It represents the fruitful outcome of consensus-building in an open democracy at its best. We should be very wary of beginning to unpick that consensus and agreement, which involved a lot of hard work, by seemingly innocent little steps in this direction or that. The fact is that the proposed amendment is a breach in the existing law and the principles and understanding that lie behind it.

My second point refers back to my noble friend Lord Christopher. In his significant office and responsibilities, Vincent Cable used very specific words. At the very least, I would expect from the Government in their reply to this debate, in words of one syllable, a statement about whether they are now repudiating the work and undertaking of Vincent Cable on whether coalition policy applies in this sphere. It is quite simple: a Secretary of State has given a solemn and firm undertaking and this Bill runs against that undertaking. From that standpoint, we need a very specific and clear response from the Government in their reply.

For all sorts of reasons, I find myself in line with the thoughts of the right reverend Prelate. But you do not have to come from his position, or indeed mine, to see the social significance of the prevailing legislation. We live in a society that is becoming increasingly boring in the sense that everything is the same all the time and there is a feeling of playing to the lowest common denominator all the time. In the richness of life, the principle of contrast between the six days and the seventh day is very important, whether you are religious or not. It introduces a rhythm into life, which is terribly important for the fulfilment of people psychologically as well as physically.

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[The Earl of Lytton (CB)]

My Lords, like other noble Lords, I have interests to declare as a landowner with rights of way over my land, as a veteran of the Countryside and Rights of Way Act open access provisions and as a chartered surveyor who occasionally has to deal with people who are affected by rights of way problems—both public and private rights of way. I am also the chairman of the Rights of Way Review Committee, which is the parallel body that brings together a large number of different interests of landowners and users. The Minister’s own department is represented on it. I pay tribute to the professionalism that goes into that, which I know is also a hallmark of the stakeholder working group. For one more day I am also president of the National Association of Local Councils, a CLA member and a vice-president of the LGA. That completes my declarations of interest.

A huge amount of consensus has been teased out between the parties, but it serves to underline some sharp philosophical differences on either side and one must try to recognise that. The consensus, such as it is, depends hugely on the Government continuing to commit to a 2026 cut-off date on the one hand and to the resourcing of the investigation of unrecorded ways on the other. There is no consensus if the Government do not commit or they falter between now and that end date. The entire thing could easily fall apart. A lot of personal commitment and reputational capital is tied up in this.

The noble Lord, Lord Greaves, referred to resources. Yes, indeed. In local government terms, this is one of those services that is regularly being bled dry because it is not a priority commitment in the context of unparalleled spending cuts. Would that the cost and uncertainty and sheer bother that is occasioned to owners of land on the one hand and the resources and activity that is put in by rights of way groups on the other—and the demands made on the public purse to try to broker these things—were actually put into the improvement of the fundamental rights of way system rather than going all round the houses trying to decide who was right and who was wrong.

The noble Lord, Lord Skelmersdale, introduced me some time ago to two people who had particular problems with the way in which public rights of way can impact so appallingly on individual property rights. They are not the only ones. I have met with others and tried to help professionally a third category. I know very well of an example of a couple who live on the Sussex Downs. A footpath runs immediately in front of their front door. Their garden lawn is in the front because the slope rises up behind them and there is effectively no private garden behind. They provided me with incontrovertible evidence, some of which I saw myself, of groups of walkers simply deciding that they would sit down on the green area that was the front lawn. I was also shown incontrovertible evidence of people peering in through the front window of this property. That is as unacceptable in my terms as someone who barricades land that is subject to lawful rights. They are both at the extremes, and those extremes must be excised from our deliberations. The more we can build that consensus in the middle, the less likely it is that those extremes will consider themselves at liberty to perpetrate some quite anti-social acts which are to the detriment of everybody—users and landowners alike.

At Second Reading I encouraged the Minister not to overlook the ongoing needs of the public rights of way system, and I am glad that the Bill contains many valuable measures. The Bill represents a snapshot in time—it had to be compiled at a particular date in order to get the material in there—yet dialogue within the stakeholder working group and the Rights of Way Review Committee is ongoing. The Country Land and Business Association told me—and the noble Lord, Lord Cameron, has repeated it—that several things agreed within the stakeholder working group are not reflected in the Bill. The implication I am getting from others is that these were not actually agreed and should not go in. I do not know the answer. The Minister and his valiant departmental staff—and they are valiant—must somehow decide who is right and who is wrong. I am not in a position to say.

I conclude by saying that if the stakeholder working group came out with measures that could reasonably be included in the Bill as a matter of agreement, there would be no reason not to accept them. I do not say that with regard to the specifics of the amendments of either the noble Lord, Lord Skelmersdale, or the noble Baroness, Lady Byford. It is just a general comment. If the next legislative opportunity is six, seven or eight years down the road, we will be well on the way to 2026, and I would be pretty worried about whether this was actually going to get done. Therefore, the entire premise of this whole set of provisions is jeopardised.

The Government have a pivotal role in this situation—that of an honest broker, assuming that they act as such and do not decide that this is in the “too hot to handle” box and do nothing, and assuming that resources are made available. There has to be a lasting settlement so that the parties on either side of the rights of way argument cease to be hostages to legal, administrative, legislative, political and financial fortune and we can look to a public rights of way system that is ultimately fit for the 21st century, rather than something that enriches consultants and lawyers.

Therefore, if the Minister’s department has, of necessity, been selective about what it has taken into the Bill from the stakeholder working group, the Minister might give us an explanation of that—or, if not, he might confirm that the Bill represents the composite nature of what needs to be in there. In that case, my view would be that no change is better than change that would put us on a slippery slope that would unseat and unsettle the consensus that we have already arrived at—a consensus which I firmly believe we can build on—and that we can progress matters to our mutual benefit across the piece.

[Lord Judd]

My Lords, I draw the Committee’s attention to the fact that I am a patron of Friends of the Lake District and vice-president of the Campaign for National Parks, but what I want to say now is very personal. If I have come to any conclusion working in those areas, it is that the management of the countryside and the enjoyment of it by the maximum possible number of people, which entails access, is best handled by what both the noble Lords, Lord Plumb and Lord Greaves, were emphasising: reasonableness and common sense. There has to be give and take, and compromise. What matters is that everyone sees clearly that it is about reaching sensible arrangements between people with their own needs for privacy, as I have. The coast-to-coast cycle track goes down a lane beside my house right by the window of one of my rooms—it is not a bathroom; it is a study—so I understand that there are issues in this area, but it is handled sensibly. It is a long-established lane going way back into history before most of the cottages and hamlets were built. Reaching consensus is therefore terribly important.

We have had a special working group working in this area and, as the noble Baroness, Lady Parminter, rightly said, we do not want to start unpicking it because we just do not know what that might lead to. The amendments that have been put forward have a lot in them to be taken very seriously. It is not at all a matter of dismissing them out of hand; rather, it is about listening to those arguments and seeing how we can meet them in that context of reasonableness and common sense. I say to those who have tabled these amendments in good faith—and I have a lot of respect for some of them—that, in the Scottish phrase in law, the case is not proven. However, it is a case that cannot just be dismissed; it should be taken seriously and, if it were ever to be pursued, it would be good if it had more hard statistical evidence at its disposal. It is not just about principles; it is about what, in quantitative terms, the effect of all this is and how big a problem it really is.

[Lord Grantchester]

I very much endorse the remarks made by the noble Baroness, Lady Parminter, that this group of clauses should be viewed as a package. As all noble Lords have expressed, all these amendments are indeed paved with good intentions. However, they are not completely uncontroversial. The existing provisions are carefully balanced, but presumptions would destroy that balance. Existing legislation already allows for many of the changes. Existing legislation already provides for the diversion of paths out of gardens and farmyards. These changes can and do happen all the time. I am told that, of 1,257 diversion orders that have reached a conclusion in the past three years, 94% did not attract objections. There is a lot of sense in the right to apply being allowed to bed in in the provisions put forward by the stakeholder working group and being properly monitored before there is any amendment to the standard procedures for closing and diverging footpaths.

Amendments 17 and 18 are also interesting in that they bring forward further provisions and further work on the stakeholder working group. I understand that the provisions in Amendment 17 are already agreed in draft by the stakeholder working group and Defra.

Amendment 18 includes elements agreed at the stakeholder working group but go a long way further where the stakeholder group is not agreed. For that reason alone, we would hesitate to endorse that amendment. Specifically, I understand that it is possible to apply to erect gates on restricted byways in line with existing provisions for their erection on footpaths and bridleways, and this is the element that was agreed by the working group. These amendments go somewhat further than the working group proposed by introducing a whole lot of new purposes for which gates and styles may be erected on public rights of way of all kinds. For those reasons we would hesitate to endorse the amendments, although we well recognise the basis on which they have been tabled.

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[Lord Walker of Gestingthorpe (CB)]

My Lords, I speak briefly in support of this amendment. Like many noble Lords, I must declare an interest: I am a shareholder in a family company that owns and farms arable land in north-west Essex. I am, and have been for 60 years, a user of footpaths, bridleways and, from time to time, byways open to all traffic, on other people’s land in Essex and in many other parts of England. This is a point on which there is no real difference of interest between reasonable landowners and walkers and riders. All of us can coexist; what none of us can easily coexist with are those who use byways open to all traffic for four-wheeled vehicles, sometimes caravans of them, with their main object, it seems, being to make as much noise and mess as possible.

I have received many letters on this subject—they all seem genuine letters, written by the person who signed them and not copying something out—all in favour of this amendment. I had one yesterday, as it happens, from my brother-in-law, who is over 80 now. He wrote to me that, from his earliest years, he was a regular user of the Long Causeway that starts in Sheffield and goes to the heart of the Peak District National Park and described how that beautiful old path has been repeatedly and seriously damaged by four-wheel drive vehicles. He cited the fact—and I have no reason to doubt it—that the Peak District National Park Authority recently incurred expense of no less than £250,000 in trying to repair the Long Causeway. I therefore support the amendment.

[Lord Judd]

My Lords, I thank most warmly the noble Lord, Lord Bradshaw, for having introduced this amendment. If one looks at the photographs to which he referred and others—the evidence of our own eyes—one sees that this could be described in other circumstances as wilful and irresponsible vandalism. It is the destruction of one of our greatest assets and the people doing it should be treated firmly. Of course, it is going to be a complex area and it will be difficult, but the point is that the noble Lord, Lord Bradshaw, is having a go. If his proposals are not right, let us get proposals that are effective but let us stop dilly-dallying on this issue.

Some of the points made by the noble Lord, Lord Jopling, are very valid, not surprisingly, and I am sure that as we take this matter forward they can be considered. If the amendment is brought back on Report, as I hope it will be, perhaps they can be considered by then, which would be very sensible.

Sometimes in this context, there is emotional talk about the right of the handicapped to access the countryside. To those of us who work in the sphere of national parks and the rest, all the evidence suggests that the responsible representative bodies of the handicapped and the others are saying that what is happening is a menace, because it makes walking—for the blind, which is a very obvious example—much more hazardous and difficult. For the deaf—and I understand that problem, being deaf myself—it can be a terrifying experience when this noise suddenly occurs, with no sort of warning.

The point that we need to remember, and it is about social responsibility, is that what a few are doing is placing significant financial penalties on people who are trying to care for these rich and special national assets. This means that the cost of that care very often gets passed on to the taxpayer, to the subscriber and the donor. Is the indulgence of those few in irresponsible behaviour to be subsidised by society as a whole? That is just ridiculous. The financial and Treasury disciplines that apply to most of our lives should mean that we make it a priority to get this situation put right. I therefore again thank the noble Lord, Lord Bradshaw, most warmly and say that the sooner that we can do something about it, the better.

[Baroness Parminter]

Can the Minister, in his closing remarks, answer a question that I think will be of interest to all noble Lords? This amendment deals with a very important issue and I think we are very grateful for it having been raised today. The question is how we deal with it. I agree with my noble friend Lord Jopling that a stakeholder group is the best way forward. However, there have been questions raised about how much confidence we can have in that as a route to deliver. Can the Minister say what progress has been achieved in setting up a working group on this issue? Has a timetable been set for that working group and if it does not complete by that point, what actions do the Government intend to take? Perhaps the Minister can say in words of one syllable whether he, like his colleague down the other end, has confidence that a stakeholder working group can address this very real problem. The strength of feeling in this Grand Committee today shows it is something that this House wishes to be addressed quickly.

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[Lord De Mauley]

My Lords, in what is an understandably contentious and partly ideological debate about the recreational use of motor vehicles on unsurfaced routes in the countryside, particularly inside national parks, my noble friend’s proposal seeks to place a duty on the Government to assess the burdens and costs caused by the use of mechanically propelled vehicles on unsealed rights of way. Presupposing that the review would conclude that motor vehicle use gives rise to a burden and cost, the clause would give powers to alleviate these but would not seek any assessment of any possible benefits, or seek to weight burdens and cost against such potential benefits.

I have to say that I have considerable sympathy with the genuine concerns of my noble friend and others about the problems that can arise from the recreational use of motor vehicles on unsealed roads. Like the noble Lord, Lord Judd, and others, I think that my noble friend is right to raise it today. Furthermore, I agree that this issue needs to be tackled and some means of resolution to it found. The Government’s published response to the Joint Committee’s report of pre-legislative scrutiny on the Bill said as much, but recognised that this Bill was not the right mechanism for doing it.

The issue of recreational off-road motor vehicle use is a complex, emotive and contentious one where one person’s pleasurable pastime is anathema to another. Research conducted on byways open to all traffic—admittedly, some years ago in 2005, although I am not aware of there being a significant change—found that although there are some acute cases of damage by recreational motor vehicle use in hot-spot areas, some of which my noble friend and I discussed earlier today, there was no evidence of widespread damage to the byway network from motor vehicles. The research found that 85% of byways open to all traffic in England carried either light traffic, at an average of 0.6 motor vehicles per day, or moderate traffic, at an average of 5.0 motor vehicles per day. Not all damage to unsealed roads and tracks is caused by the recreational use of motor vehicles. The research found that 62% of byway traffic is due to land management and dwelling access and just 38% is due to recreation. In addition, it found that 70% of byways were without any drainage. Much of the damage is due to a combination of farm vehicles, water erosion and poor maintenance.

I must also say that there is good evidence that the use of unsealed roads during organised motoring events, such as hill climbs, puts significant amounts of money into rural economies. There are about 150 hill climb events around the country every year, with over 12,000 participants. The motorcycle club trials in the south-west alone are estimated to bring about £120,000 to the local economy. Some groups of motor vehicle users engage in volunteer activities to repair and maintain unsealed tracks, which I think is something that we would all want to encourage.

It is our contention that the most appropriate way to review policy on the recreational off-road use of motor vehicles is for it to be based on the stakeholder working group model and, in answer to my noble friend Lady Parminter, such a group will be established as soon as possible after the passing of the Bill. Despite my noble friend Lord Bradshaw’s scepticism, I point out that the stakeholder working group approach has proved to be successful, as demonstrated by the consensus in the face of diametrically opposing positions over the rights of way reforms package, of which the clauses in the Bill form the major part. This has resulted in agreement being arrived at through discussion and negotiation.

[Lord Judd]

I am grateful to the Minister for giving way. If he is advocating the working group approach, in learning from the last experience, does he envisage that that group might be given a time limit by which it is expected to report?

[Lord De Mauley]

I was just coming to the noble Lord’s earlier question on timing in a moment.

My noble friend asked what would happen if there was no consensus between the pro-vehicle and anti-vehicle groups. Clearly, consensus would be the preferred outcome but of course we recognise that ultimately this may not prove possible. Even without consensus, at least all the viable policy options will have been properly explored and evaluated by stakeholders, enabling Ministers to make better informed decisions on which proposals to take forward.

On the point raised by the noble Lord, Lord Judd, the original stakeholder working group took 18 months to reach its conclusions and there is no reason why we should not set a similar timeframe for another. I am grateful to have my noble friend Lord Jopling’s support for this route. Within such a group, recognised experts can explore all the viable possibilities and their likely consequences. Solutions arrived at in this way, based on agreement and mutual interest, are likely to result in less conflict and reduce the need for enforcement.

My noble friend’s proposed new clause would create new regulation, which may not prove necessary after the issue has been properly analysed and discussed by the stakeholder working group and other stakeholders. Furthermore, subsection (3) of his proposed new clause contains a power to adopt some sort of measure to remove public rights of way by regulations. We believe that this would be an inappropriate use of delegated legislation and does not recognise that the best solutions to problems are often those that do not resort to legislation.

I am happy to have further discussions with my noble friend between now and Report but, on the basis of what I have said today, I hope that he will agree to withdraw his amendment.