Countryside and Rights of Way Act 2000 (Substitution of Cut-off Date Relating to Rights of Way) (England) Regulations 2023

Baroness Scott of Needham Market Excerpts

Monday 27th November 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to take part in this debate and particularly to listen to the powerful and incisive speech of the noble Lord, Lord Rosser. I seek to add to the content of the debate rather than to repeat what has been said, but I could not resist rising to support entirely the regret Motion tabled by the noble Lord, Lord Hodgson of Astley Abbotts. It is not often that your Lordships’ House sees the two of us aligned, but it reflects the fact that, all around this House, every speech has expressed great regret, not just in technical but in real terms, about the direction that the Government are taking on these public rights of way.

I will very briefly set this in historical context. Since the election of Margaret Thatcher, 10% of what was public land in the UK has been sold into private hands. If we look back to centuries before that, it is one long tale of enclosure, of the public being excluded from more and more land. The real tragedy of the commons is that they were stolen from the people. Today, we are not talking about ownership but about rights of way: the right to walk on our own land. Maybe that path up the hill towards the church was once how people visited a family grave. Maybe the path between one village and the next was how courting couples got together and how, historically, families were created. We might make different uses of those rights of way today, but they should still exist. This country is sometimes referred to as a property-owning democracy, yet 40,000 land millionaires, 0.06% of the population, own nearly half our land.

We are in a situation where people have rights which are threatened with being cut off. I pick up one point that was highlighted in the excellent Ramblers briefing. As the Government are presenting this to us, it was never intended that paths in current use would not be cut off, yet our current arrangements are that this could be happening. These days with social media and mobile phones—I am probably not the only one with a walking app that often records the route that I took in various places—there may well be a great deal of data indicating that footpaths are in use. However, I invite your Lordships to consider for a second, as many others have referred to, how difficult it would be for volunteers and small local organisations to collect and collate all that data to provide the proof that is needed. That is not something that will happen quickly. We have lost so many rights. Let us not lose any more.

[Baroness Scott of Needham Market (LD)]

My Lords, I support these Motions from a particular perspective. Back in 1993, I was first elected to Suffolk County Council. Somewhat to my surprise, I found myself chairing the rights of way committee, a position that I held for some years. With all the experience that I gleaned, I can do nothing but agree with all the comments that have been made tonight.

When I was first learning about rights of way, I came across a summing-up by Lord Denning in which he said that nothing excites an Englishman so much as a footpath—I always thought that said rather a lot about Englishmen. Nevertheless, what I learned pretty quickly from that is that you have the coming together of two polar opposites. On the one hand there is the right of access, often historic, that people want to exercise, and on the other, “This is my land, it is private and I do not want anyone on it”. These are often irreconcilable. However, I also learned very quickly that, as public bodies and as legislators, it is not our job to pick a side but somehow to find a way of bringing them together. This is what saddens me about current proposals: they do not do that; they are partial and have come down on the side of the landowners.

The stakeholder working group, which other noble Lords have mentioned and which brought together local authorities, landowners and user groups, was able to come up with a consensus report. It is worth reflecting on how nigh-on impossible that must have been, and yet the stakeholder working group did that. That ought to be a gift to the Government, to say, “Here is a package on which all the stakeholders agreed”. Yet the Government have taken one piece of that and ignored all the rest, despite the conclusions of the group that

“implementation of the proposals in full is crucial to preserving the balanced nature of the package”.

It is a real pity that, all this time later, we have not moved; in fact, this is a massively retrograde step.

As we have heard, we do not have information about the exemptions from the cut-off date. There are some really important categories of rights of way here. Many paths in urban areas have never been on a definitive map and yet are used all the time. There are paths which are already in use. Where I take issue with the speech, with which I otherwise agreed, from the noble Lord, Lord Thurlow, is that they are often not long forgotten and ill-used; many of them have been used for hundreds of years and still are but just happen not to have been recorded. It would be tragic if they were to be lost. Then there is the backlog of which we have heard: what is the status of those for which applications have already been made?

I want to finish by agreeing with noble Lords who share my disbelief at the Explanatory Memorandum, which says there will be no significant impact on the voluntary or public sectors, because that is palpable nonsense. Local authorities, as we have heard, already have a massive backlog and are hugely strapped for cash. If you are running a local authority and you have limited legal support, are you going to put it into childcare or public rights of way? That is the reality that many of them are facing. All that will happen is that the backlog will get larger. Who is putting in these claims? They are being put in by volunteers from various user groups. In all the years I chaired the rights of way committee, I never saw a specious claim. Every one of them had been immaculately researched, often over many years, and although occasionally we would disagree on the point of law or its interpretation, they were made in good faith and deserved proper consideration. How volunteers are to carry on working against this sort of deadline, and produce that quality of work, defies belief.

I urge government to prioritise the regulations governing these historical paths and the exemptions from the cut-off date, and to set out how government funding can be used to support the work of both local authorities and the voluntary sector, if we are not to lose them for ever.

[Lord Redesdale (LD)]

My Lords, I want to support the Government on a couple of points, which I know the Minister will find surprising. Is it just me, or is it cynical to suggest that the date for the cut-off was set not for after this Government, nor for the next Government, but for the Government after, which always gives the impression that we have moved to the point where it is in the long grass and nobody is thinking about it?

The noble Lord, Lord Hodgson, talked about the 2000 Act, and I remember being part of the debates when we discussed that in 2000. There was great hope at that point that there would be money pouring into the rights of way from the Labour Government, but that sort of dissipated. I very much hope that the Minister can raise with his officials whether there could be discussion with the national heritage fund about coming forward with some funding, because it is not going to come from local authorities and the volunteer groups are going to find it difficult to push this forward.

I want to speak on this because I am one of those very rare individuals—one of the landowners that the noble Baroness, Lady Bennett, talked about: a rapacious landlord in the north of Northumbria. The success I have had recently is introducing a new right of way, in relation to higher-level stewardship. I give a note of caution to anybody who goes down that route, which is that we agreed the right of way on a map. This summer I decided to actually follow the right of way, as set out by Northumberland National Park. The first half a mile is absolutely fabulous, through bucolic pastureland. However, you then hit a stile, and if you go over the stile and follow the path, you go down a near-vertical cliff face, which is almost lethal. In fact, it is totally lethal because it is covered in bracken. If you manage to get to the bottom of this without breaking your ankle, you hit the next helpfully placed marker, which directs you straight through a bog, which my children used to call a “welly-eater”—a bog you get half way through and then realise it has sucked your welly off and you will never see it again. After that you get to the most beautiful site on the riverbank, before you then have to think about going back the other way. I was told by the local authority that I could change it, but that it would probably be a harder process than taking the route in the first place.