David Drew (Stroud, Labour)

I beg to move amendment No. 36, in schedule 4, page 41, line 28, leave out

‘on or after 28th June 2005 but'.

I move this amendment, tabled in my name and that of my hon. Friend the Member for Sherwood. We seek clarification on why a specific date is set. The implication is that any transitional arrangements for enforcements against unlawful works under this schedule prior to that date will no longer be permitted. We are disappointed that, along with the lack of a specific duty on local authorities to take action against unlawful work, that element of the schedule would seem to be a diminution. I could quote many cases, but I shall sit down and either allow the Minister to say something or allow my hon. Friend the Member for Sherwood, who has now risen, to back up what I was saying.

Paddy Tipping (PPS (Rt Hon Jack Straw, Secretary of State), Foreign & Commonwealth Office; Sherwood, Labour)

I am conscious of the time, and I apologise to my hon. Friends. The amendment’s intention is to return the Bill to the form in which it was originally published. Perhaps the Minister will tell us why the proposal to insert the June 2005 date was accepted in the House of Lords. Many obstacles across the country prevent a right to roam. Had that date not been put in the Bill, people who feel strongly on those issues could have taken enforcement action. Powers are available for the future but not in respect of the past.

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

As my hon. Friend the Member for Sherwood has just said, the Bill extends the power to seek enforcement action against unlawful works to any person or organisation in future. Amendment No. 36 is about the past. The issue it raises boils down to whether any person or organisation should be able to ask the court to enforce against unlawful works that were undertaken before the Bill began its passage through the other place.

In practice, the question is not that simple. The Limitation Act 1980 rules out enforcement against works undertaken more than 12 years ago, and the effective window for action tends in fact to be much shorter than that, because the courts, which have a discretion rather than a duty to act, tend to look critically at any suggestion that they should enforce against works that are more than a few years old. So, there is likely to be a limited number of cases in which the amendment would make a practical difference to the enforcement position.

Our view is that where works were undertaken within that narrow time window without consent, it would not be right for us to open up the scope for anyone at all to seek enforcement action. In the end, those responsible for such works did what they did, and bore the cost of doing so, on the basis of the limited enforcement regime that then applied. There is a strong presumption against legislation having a retrospective effect. We think that the provision as it stands, without the amendment, strikes a fair balance. We do not think it would be just to allow any person—

Tom Levitt (PPS (Rt Hon Hilary Benn, Secretary of State), Department for International Development; High Peak, Labour)

I shall be very brief. If an existing barrier were to be changed, does the Minister envisage that it would count as a new barrier, which could then come under the clause as the Minister envisages it, or would it be caught under the old pre-June 2005 issue?

Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)

If further works, such as maintenance or an extension, are undertaken in relation to old works, that may allow any person to take enforcement action against them if the new works do not have consent. I hope that answers my hon. Friend’s question. I hope that on that basis, my hon. Friends will not press the amendment to a Division.

David Drew (Stroud, Labour)

I beg to ask leave to withdraw the amendment.