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

– in the House of Lords at 4:53 pm on 27 November 2023.

Alert me about debates like this

Baroness Hayman of Ullock:

Moved by Baroness Hayman of Ullock

That the Countryside and Rights of Way Act 2000 (Substitution of Cut-off Date Relating to Rights of Way) (England) Regulations 2023 were laid before Parliament during the prorogation period and are due to come into force before the House has sufficient time to scrutinise them following debate on His Majesty’s Most Gracious Speech; notes the lack of public consultation on the policy implemented by the regulations; and calls on His Majesty’s Government to outline whether and how they expect the existing backlog of applications relating to unregistered rights of way to be cleared before the deadline contained in the regulations.

Relevant document: 1st Report from the Secondary Legislation Committee

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs)

My Lords, I have laid my Motion to Regret because I believe that proper records of our public rights of way are so important. We know that public rights of way encourage recreation and tourism. In my county of Cumbria, they generate much-needed income in a very rural area. They are also an integral part of our heritage. We also learned, particularly from Covid, of the important role that being in the countryside has in the prevention of ill health, improving well-being and reducing loneliness.

The National Parks and Access to the Countryside Act 1949 first required local surveying authorities, which are now the county councils and the unitary authorities, to prepare official records of public rights of way. However, the problem has been that those records are incomplete. The Ramblers has provided research—I thank it for its briefing—which suggests that there may be as much as 41,000 miles of unrecorded historical public rights of way in England.

The Countryside and Rights of Way Act 2000 included provisions for a cut-off date of 1 January 2026 for registering those rights of way. That was subject to some exemptions, after which any remaining unrecorded paths would be lost. The purpose of the regulations we are debating today is to move that cut-off date from 1 January 2026 to 1 January 2031. My Motion regrets that the regulations were laid before Parliament during the Prorogation period, which we consider to be pretty poor form. They are also due to come into force before, we think, the House has had sufficient time to scrutinise them, which is why I wanted the debate today, as much of our time since Prorogation has been taken up with the debates on His Majesty’s gracious Speech. Can the noble Lord, Lord Benyon, say why the decision was made to lay the regulations during this time?

My Motion also expresses concerns about the lack of public consultation on the policy that will be implemented by the regulations. Can the noble Lord explain the lack of public consultation on a matter that is clearly of great interest to many people? Finally, my Motion calls on the Government to outline whether and how they expect the existing backlog of applications relating to unregistered rights of way to be cleared before the deadline contained in the revised regulations.

I also express our support for the Motion in the name of the noble Lord, Lord Hodgson of Astley Abbotts, which welcomes the extension of the period for officially recording footpaths but regrets that no permanent solution has been found. I look forward to his comments on his Motion.

Clearly, an additional five years to apply for historical rights of way to be added to the definitive map is welcome, as the process requires extensive and time-consuming research, which we understand has largely been undertaken by volunteers. I would therefore like to speak a little more in detail about our concerns about the current backlog of applications. Estimates suggest that in England there could already be over 10,000 applications currently waiting to be processed by authorities, with some waiting 20 years to be determined. We believe that it is inevitable that the number of applications will increase significantly in the run-up to 1 January 2031.

It is significant that the Secondary Legislation Scrutiny Committee made it clear in its report that Defra should have included information about the local authority backlog in the Explanatory Memorandum and criticised the lack of information about the impact. I draw the attention of your Lordships’ House to one or two of the comments made in that report. First:

“The Explanatory Memorandum … states that there will be no impact on business, charities, voluntary organisations or the public sector”.

However, as local authorities are responsible for assessing and determining the applications, I cannot understand how there can be no impact.

In addition, the report noted that the backlog of applications was likely to increase in the run-up to 2031, as I said. It talked about a submission that had been received from the Open Spaces Society,

“which, while not opposing the Regulations, questioned Defra’s assumption that there will be no significant impact”.

Can the noble Lord explain why it was decided that there would be no significant impact—how was that conclusion reached? The Open Spaces Society suggests that setting back the cut-off date

“will have a very substantial impact on charities and voluntary bodies”.

Regarding local authorities, although the cut-off date cannot be postponed beyond 2031 in general, the provision enables a further postponement, without limit, in relation to the former county boroughs, which were excluded from the operation of Part IV of the National Parks and Access to the Countryside Act 1949. That duty was given to them only by the Wildlife and Countryside Act 1981. The Countryside and Rights of Way Act 2000 clearly envisaged that it might be necessary for those places to be granted a longer period to prepare their maps, but this opportunity has not been taken.

I mentioned my county of Cumbria, where I was a county councillor. We have an enormous number of footpaths that need to be managed and recorded. Why has no provision been made for a later cut-off date in relation to the county boroughs? How do the Government intend to support the work of local surveying authorities and the voluntary sector to make progress in researching, submitting and determining applications? This is a huge amount of work.

I can appreciate why the Government want to set a deadline: it focuses minds and should help to bring down the backlog, while at the same time hopefully providing more certainty for farmers and other landowners. So can the noble Lord, Lord Benyon, reassure this House that the exemptions to the cut-off date are fit for purpose and will cover all necessary considerations, and that, following a review, an extension for the former county boroughs could be brought in if necessary? It is critical that we do not lose public rights of way and access because of these regulations. Can the Minister guarantee that this will not be the case?

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative 5:00, 27 November 2023

My Lords, I have tabled a parallel regret Motion but, before I get to that, I will say what a pleasure it is for those of us who have followed this through the long night—many years—to see the noble Lord, Lord Rosser, back in his place. He has been with us for many of these debates, and he and I have debated many times in the past. I know he has not been in the best of health, and I am sure I speak for the whole House when I say that we wish him back here in full health ASAP.

When I joined your Lordships’ House in 2000, one of the first Bills I was involved with was the Countryside and Rights of Way Bill, as it then was. I remember a short debate on footpaths—it was before I made my maiden speech, so I did not participate—during which the Labour Government Minister pointed out that there was a 25-year timetable during which we could finish this task. The universal reaction to this was, “Well, that’s job done, isn’t it?”. This just shows how wrong we all were then. During the intervening 20 or so years, I have had the chance to raise, and support other Members of your Lordships’ House raising, this important policy issue. So I find myself echoing the famous words attributed to a football manager: “It’s déjà vu all over again”.

We heard a magisterial speech from the noble Baroness, and I will not repeat what she said. One issue that could usefully be picked up is the work of the stakeholder working group, which was an attempt to draw together all the people who have an interest in footpaths. It was set up in 2008 and reported unanimously in 2013. On 20 January 2022, nearly two years ago, I put down a Question for my noble friend on whether the Government would set a date for the commencement of the provisions of that working group. I received the famous words that

“the Government intends to lay legislation as soon as reasonably practicable”.

That was two years ago, and it will shortly be seven or eight years since this group reported unanimously. The Government really must decide that we can use this information to try to pull together the many people who have an interest in this area.

My regret Motion is rather more specifically focused. I thank my noble friend most sincerely for his five-year extension. Of course, I am disappointed that there has been something of a U-turn in government thinking, but half a loaf is better than no bread. My Motion points out that while we have put off the potential car crash for five years, it is still unlikely, given the glacial progress we have made over the last 20-plus years, that we will solve the problem in five years from now.

Before I go any further, I need to put on record, as I have previously, that I am a member of the Ramblers and have been briefed by it, as has the noble Baroness. As a brief background to Members of your Lordships’ House who are not familiar with how bureaucratic the system is, I will give a short personal example.

My family investment company owns a trivial amount of agricultural land in Shropshire, a county that features quite high on the list in the Ramblers briefing. Our family policy is that if an adjoining field becomes available, we will make an offer for it. So it was that a couple of years ago we purchased a field with a footpath that went diagonally across it. Every year, in accordance with the regulations, after the crops had been planted we went on a quad bike with a sprayer on the back and sprayed out the two-metre wide strip, through the middle of the crops, that followed the line of the footpath. Obviously, you lose a certain amount of land from that but, equally, you are asking people to walk across a ploughed field and a sown field that is muddy, wet and so on. The corners and sides of the field have headers, two-metre strips of grass that protect the hedgerows and the wildlife in them.

It occurred to us that it might be a good idea, and better for walkers, if they could use the strips rather than the mud, so we discussed it with Shropshire Council. I have only praise for its help in the work it did with us, which was very constructive and helpful—but, my goodness, the process you have to go through. This small change affected one cottage. I spoke to the people at the cottage and together we sent in a letter from them saying that they had no objection. There was silence.

Some months went by, and we were then told by the legal department of the county council, “Sorry; it wasn’t in the right form to meet the regulations”. So back we went with another set of letters. The trouble is that this goes on and on. We started this in February this year, and we are told we are unlikely to have a determination, a final resolution, before early summer next year. That will be a year and a half just to redirect, not to remove or add to, a footpath in a way the county council thinks is beneficial for walkers.

The time and effort and diversion of precious resources to carry this out seems disproportionate. It seems to me really important that we discuss and tackle the one size fits all that we have built into the regulations. The Defra plan—here I quote from the excellent report from the Secondary Legislation Scrutiny Committee—is that it will

“speed up and streamline existing bureaucratic procedures”.

That is a critical decision. It needs to be brought in, and quickly, if it is to have any measurable impact over the next five years.

At the heart of my regret Motion is concern about performance and how we instil a sense of urgency in this issue. How do interested parties monitor the progress—if any? We have this debate today and my noble friend, in winding up, will no doubt give us enthusiastic and encouraging words that we will all be pleased to hear. We will then go on our way, and the danger is that the status quo will prevail.

How might performance—actual and relative—in different local authorities be measured? How, as a result, might a certain amount of pressure be supplied to the laggards? There is a wonderful new body called Oflog—the Office for Local Government—which might have an important role to play. I shall quote a couple of lines of the Written Ministerial Statement from July, when its establishment was announced. It said:

“Oflog is a new performance body focused on local government in England. It will provide authoritative and accessible data and analysis about the performance of local government, and support its improvement … By collating, analysing, and publishing existing data about the relative performance of councils, it will help councillors and the public have the information they need to scrutinise more effectively … it will ensure council leaders can compare themselves against their peers and find examples of good practice to learn from; and it will allow central Government and their partners to identify where there might be challenges and a need to step in to give support, where appropriate”.—[Official Report, Commons, 4/7/23; cols. 35-6WS.]

It seems to me that Oflog hits all the hot buttons as far as footpaths and their preservation are concerned. If, as I fear, my noble friend the Minister is unable to say in his reply that he is already on the case and Oflog is the answer, could he give the House undertakings that he will examine the possibility of Oflog being used in this case; and that he will write to all Members of your Lordships’ House who have participated in the debate as to what progress has been made and what the results of those discussions were?

I conclude by saying, as is common ground among all of us, that the network of footpaths in England and Wales is a unique and irreplaceable resource. We surely have to use the next five years to establish an approach that will preserve it for future generations.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, I thank the noble Baroness, Lady Hayman, and the noble Lord, Lord Hodgson, for their regret Motions. My view is that the Government have got themselves in a bit of a mess with this statutory instrument, which was laid during Prorogation and has not had time to be debated in the House.

Obviously, the funding promised in the original Labour Government Act to be given to voluntary bodies has never really materialised. These reforms should have been delivered and monitored long before 2026 to inform enactment but endless delays have prevented this happening. Although most bodies welcome the extension of the proposed cut-off date, most bodies also oppose the implementation of Part II as a whole. Defra’s decision to bring into force the relevant provisions in Part II with immediate effect and without any agreed exemptions for now is not a welcome development.

The regulations that have already come into force extend the cut-off date by which time applications have to be made to local authorities to register historic rights of way for footpaths and bridleways from 1 January 2026 to 1 January 2031. This reverses the previously understood position that the cut-off date would be repealed altogether. After the new date, any unregistered historic rights of way in England will be extinguished unless they are subsequently found to be exempt from the cut-off date, but these measures are yet to be announced.

Defra has argued that it does not expect any significant impact on business, charities or local authorities, but there is already a considerable backlog of applications and many more cases are expected to come with the new extended cut-off date. Each case costs many thousands of pounds and, as we have heard, the process for this is extremely complicated. The new cut-off date will have considerable impacts. Among the 21 local authorities for which data is available, there are 4,000 applications for a definitive map modification, 80% of which are likely to be pre-1949 rights of way. Based on calculations, it has been estimated that these backlogs alone could take 20 years to work through.

The number of applications will continue to increase the closer we get to the final cut-off date. The additional costs on local authorities, voluntary bodies and landowners alike will be considerable—estimated to be as high as £40 million. How will the Government ensure that the additional financial burden for this extension is paid for? How will they ensure that the existing backlog of cases is dealt with and that there is sufficient capacity in the system to meet the projected future applications? What happens to any cases in the system that are not processed before the cut-off date? When will clarity be given on the grounds for the exemptions that Defra says will be put in place? Footpaths are a precious national resource; we must work to ensure that none is lost, never to be replaced.

Photo of Lord Rosser Lord Rosser Labour 5:15, 27 November 2023

My Lords, I thank the noble Lord, Lord Hodgson of Astley Abbotts, for his kind words, which I much appreciated. I would like nothing more than to be able to be back here in the House on a regular basis. I miss the House and everyone here very much indeed.

I want to take this opportunity to add my voice to the disquiet that has already been expressed about these regulations, which are now in force and about which, as has been said, there has been no proper consultation despite the impact that they could have on so many members of the public with the loss of access to potentially thousands of miles of historic rights of way.

In an Answer on 27 May 2022, the Government stated that they had

“decided to take forward a streamlined package of measures to implement rights of way reform including repealing the 2026 cut-off date to record historic rights of way, as well as giving landowners the right to apply to divert or remove rights of ways in specific circumstances”.

No reason was given in that Answer for the change in policy, welcome as it was, to repeal the 2026 cut-off date. Likewise, no reason is given in the Explanatory Memorandum to these regulations as to why the Government have gone back on that policy of repealing the cut-off date provisions and are instead introducing a new cut-off date of 1 January 2031. I would be grateful if the Minister could set out the change in circumstances between the Answer on 27 May 2022 repealing the cut-off date and now that has led to the complete change in announced policy on the repeal of that cut-off date.

The Explanatory Memorandum does not even admit that the Government are going back on the policy announced on 27 May 2022 of repealing the 2026 cut-off date. Yet it goes on to say:

“No formal consultation is required or been undertaken … There is no, or no significant, impact on business, charities or voluntary bodies” or “on the public sector”. The Ramblers, of which I think the noble Lord, Lord Hodgson of Astley Abbotts, said he was a member, is a charity. It has 100,000 members and, through volunteering, works hard to keep our rights of way, including footpaths, open. They will be affected by these regulations and the reinstated cut-off date by which to register the estimated 41,000 miles of unregistered historic rights of way or risk losing them, as compared with the impact of the policy announced by the Government on 27 May 2022 to repeal the cut-off date. Likewise, local authorities may be stretched resource-wise to cope with the potential workload that the newly imposed cut-off date, as compared to having no cut-off date, will in all probability generate. Are the Government really saying that these regulations, on which there has been no consultation, will have no significant impact on organisations and bodies such as the Ramblers and their volunteers or on local authorities?

It is a question I hope the Minister will answer, because it also raises the issue of how often the Government meet organisations representing the public on access and rights of way issues, such as the Ramblers, the Open Spaces Society, the Byways and Bridleways Trust and the British Horse Society. How many times have the Government met these and similar organisations, for example, either collectively or individually, over the last two years? I would be grateful for an answer.

The Secondary Legislation Scrutiny Committee has also commented on these regulations, saying:

“We take the view that it would have been helpful to explain the current backlog of applications in the explanatory memorandum. While the planned rights of way reform may streamline the application and determination process, many local authorities are nevertheless likely to receive a significant number of new applications, adding to the existing backlog and to current resource pressures”.

On the basis of Defra’s own incomplete figures, there are already 4,000 applications for a definitive map modification order waiting to be determined. However, this figure covers only 21 local authorities. Will the Government say how many local authorities are potentially affected? Estimates from the Ramblers suggest that in England, there could already be over 10,000 applications waiting to be processed by authorities, with some, as has already been said, waiting 20 years to be determined.

It is inevitable that the number of applications will increase significantly in the run-up to 1 January 2031, based on the increase in applications researched and submitted for determination between 2018 and 2023 that have already been made in many local authority areas. In Lincolnshire, for example, that increase in applications is from 56 to 378 with 1,934 potential miles of historical rights of way to be researched and applied for by 2031, largely by volunteers, against a background of a pending decision, apparently, by the Government, to apply a higher threshold for applications for adding unrecorded pre-1949 rights of way. It looks as though going back on the commitment to repeal the 1 January 2026 cut-off date is but one part of a government programme to load the dice more heavily against volunteers and short-staffed, underfunded local authorities, seeking on behalf of the public to register an estimated 41,000 miles of historical rights of way. And still, the Government maintain there is no need to consult on these regulations.

A stakeholder working group was, I believe, established by Natural England in 2008 and involving Defra, to advise on what could be done to reform the processes governing the application and determination of historical rights of way. The group comprised a balance of interests: user groups, landowners and local government. The consensus reached by the SWG was put forward to Defra and the reforms enshrined, as I understand it, in the Deregulation Act 2015. However, the reforms required detailed regulations to be enacted, which still have not been, eight years on. It was always agreed by the SWG that the package of reforms should be delivered as a whole: all sides, users and landowners, for example, accepting that they had had to give way on some things to deliver the consensus.

The SWG, I understand, still exists. It is chaired by Defra officials and is still advising on the detail of the regulations. These include, crucially, the paths that will be exempt from the deadline, but also the right for landowners to apply for diversions. I understand, though, that the former Secretary of State, Thérèse Coffey, took some unilateral decisions of late which break the consensus achieved. The exemptions regulations, for example, would no longer include those paths that are unrecorded yet are currently in use by the public. Why do this? It would be helpful if the Minister could clarify the past and present role and position of the stakeholder working group, as well as the recent decisions by the previous Secretary of State in relation to the consensus achieved by the SWG.

I made reference to paths and historical rights of way that will apparently be exempt from the deadline. How many miles of rights of way, in how many local authority areas, is it expected that these exemptions will cover, and what kinds of historical rights of way are we talking about? Not knowing what impact these exemptions will have on the organisations and bodies involved in identifying the estimated 41,000 miles of historical rights of way not yet on local authority definitive maps makes it difficult, if not impossible, to assess any reduction in their potential workload.

Although the cut-off date would not be postponed beyond 2031 in general, a provision, I believe, under the Countryside and Rights of Way Act 2000, enables a further postponement, without limit, in relation to the former county boroughs which were excluded from the 1949 Act and given a duty to prepare definitive maps and statements only under the Wildlife and Countryside Act 1981. My noble friend Lady Hayman of Ullock addressed that issue. The 2000 Act appears to envisage that it might be necessary for those places to be granted a longer period to prepare their definitive maps and statements, but this opportunity has not been taken. Will the Government say why?

The Government’s Environmental Improvement Plan 2023 includes a clear commitment to ensure that everyone lives within a 15-minute walk of green and blue spaces, but 38% of people fall outside that threshold. Completely changing government policy to repeal the cut-off date and risking losing tens of thousands of miles of unregistered rights of way will do nothing to help achieve that 15-minute walk policy objective. Instead, it will deny people routes that they could have used to access green and blue spaces close to home.

I have asked a number of questions about government policy and its impact, and about changes made and the reasons for them, and would be grateful for answers from the Minister, either today or subsequently in writing.

Photo of Lord Thurlow Lord Thurlow Crossbench

My Lords, I will take the same tack as the noble Lord, Lord Rosser, and add my voice to his, following his welcome return to his place in this Chamber.

Unless I have misunderstood the proposal—if I have, the explanation is well buried—why proceed with a cut-off date on the registration of these long-forgotten rights of way at all? They are an ancient and important contribution to our social fabric in England. For a thousand years and more, these rights of way have evolved into a wonderful network of publicly accessible walks and bridle paths, which are much enjoyed by a large and growing cross-section of society.

The objective of the 2000 Act appears to be a desire to create

“a final and complete record of historical public rights of way”.

There seems to be no reason for not adding to maps as old, long-lost or forgotten rights of way come to light; simply update the records. As we know, this Government agreed to drop the cut-off date and, for no good reason, wish to reintroduce it. Scotland and Northern Ireland do not want a cut-off date. There is no explanation for why we need this. It sounds as though it is the result of a horse deal between different lobby groups of landowners and farmers. Where did the public fit into this discussion? I do not think that they have a voice or that they have been heard at all. I do not deny that irresponsible walkers in the countryside are a nuisance, but they are a small minority. Without access to the countryside, those who abuse it will never have a chance to learn the rules of good behaviour and learn to treat this resource as something so precious and special.

There has been comment on the backlog awaiting registration. This is a resourcing problem that can be dealt with, but the Act is not about resourcing; it should be about access to this national network. Defra says that it will

“speed up and streamline … bureaucratic procedures” for the recording process. That is good news, but it is not a reason to prevent new registrations. The Explanatory Memorandum states, as we have heard more than once, that there will be no impact on businesses, charities, voluntary organisations or the public sector, but there is no mention of human beings. What about the impact on them—citizens, the public and society as a whole? Does Defra not credit this greater good?

I too thank Ramblers for its briefing. As we have heard, it suggests that tens of thousands of miles of unrecorded public rights of way may exist and need to find the daylight. What Government who claim to represent the people would want to extinguish this public right? It is rather like locking the gates to public parks in towns and cities permanently. That is unthinkable, of course, but is snuffing out this public resource any different? As the Motion tabled by the noble Lord, Lord Hodgson, underlines, this is an important national asset.

I support the CLA and the NFU and the good work that they do for farmers and landowners, but to prioritise their interests over those of the public is not reasonable. The wider public do not have a collective voice in these matters, notwithstanding the good work of the many organisations that represent those with a keen interest in the countryside. Referring to prioritising farmers and landowners’ interests over those of the public is not a generalisation or a political statement; I am simply suggesting that the public should be entitled to continue to enjoy the rights of way which have existed in former times and yet have been lost through whatever reason and then latterly rediscovered. I am asking not for special treatment for the public but simply that their rights continue to be recorded.

The noble Baroness, Lady Hayman of Ullock, mentioned Covid, which taught us how important the countryside is to those needing and able to escape their bubble to walk upon footpaths in these green spaces. I did it myself when dispensation was allowed. The Government are preparing resilience for a possible future pandemic—something that we all hope will never happen—but part of that process should be expanding the network of publicly accessible green spaces, not preventing the re-emergence of long-lost rights.

Another consequence of the pandemic was the impact on families and people living alone being bottled up in small spaces for months at a time with too little space to study or work—and the mental health crisis which has followed. Hundreds of thousands of working people are now out of work as a result of mental health conditions which emerged from those constraints, surely another sound reason to do all that we can to open up the countryside for public enjoyment. Once again, I remind the House that I am asking not for unlimited access but simply the right to enjoy the rights of way that were enjoyed by past generations but which will be lost under this proposal. Those rights are unlikely ever to be recovered for the benefit of society as a whole. I consider this to be a terrible loss to the people of this country, notwithstanding exemptions.

Let us not strangle the continuing emergence of lost rights of way. I ask the Government to embrace it.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 5:30, 27 November 2023

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.

Photo of Baroness Scott of Needham Market Baroness Scott of Needham Market Deputy Chairman of Committees

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.

Photo of Lord Redesdale Lord Redesdale Liberal Democrat

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.

Photo of Lord Benyon Lord Benyon The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

My Lords, I thank the noble Baroness, Lady Hayman of Ullock, and my noble friend Lord Hodgson of Astley Abbotts for introducing these Motions, and all noble Lords who have contributed to this debate. I notice that the noble Baroness, Lady Mallalieu, is in her place and did not contribute to this debate, but I take the opportunity to wish her a very happy birthday.

The Government are committed to increasing access to nature. The environmental improvement plan sets out an ambitious commitment, as pointed out by the noble Lord, Lord Rosser, for everyone to live within a 15-minute walk of green or blue space, and to reduce other barriers that prevent people accessing it. My Secretary of State feels very passionately about this whole debate and, as Chief Secretary to the Treasury, got me and various others in, when I had responsibility for access at Defra, to drive forward an agenda that coalesced in the Agnew commission. A lot of fresh thinking is now taking place and breathing new life into that, and he is really committed.

This is part of a much wider debate, and I just want to put this on the record. We have nearly completed the 2,700-mile King Charles III England Coast Path, a product of the Marine and Coastal Access Act, which we firmly support and are proud to have delivered on our watch. We are delivering a £9 million levelling up parks fund to improve green space in more than 100 disadvantaged neighbourhoods in the UK—a point that the noble Lord, Lord Rosser, raised—and delivering the £14.5 million Access for All programme to make access to green and blue spaces more inclusive. There are much wider issues around well-being, the social prescribing agenda and the success we have had through our farming and protected landscapes grant schemes, which have seen many new miles of footpaths in some of our most amazing landscapes.

We want to see our reforms speed up the process for adding rights of way to the legal record for everyone to enjoy, and exceptions to the cut-off date will ensure that many valuable routes will be retained. We have discussed the Countryside and Rights of Way Act 2000 (Substitution of Cut-off Date Relating to Rights of Way) (England) Regulations 2023, which have extended the cut-off date for recording historical rights of way from 1 January 2026 to 1 January 2031. These regulations came into force on 17 November, following commencement of the cut-off date last month via the Countryside and Rights of Way Act 2000 (Commencement No. 16) Order 2023. This fulfilled the Government’s intention, which I set out on 18 May in response to my noble friend Lord Hodgson’s amendment to the Levelling-up and Regeneration Bill. This means that on 1 January 2031, any rights of way that existed before 1949 and are not recorded on the definitive map will, with certain exceptions, be extinguished.

My noble friend Lord Hodgson has referred to the rights of way network as an important national asset—a number of noble Lords referred to it in a similar way—and in this he and I, and I am sure the whole House, are in full agreement. We have a fantastic rights of way network across England, with some 120,000 miles of footpaths, bridleways and byways, which play a vital role in supporting the nation’s health and well-being.

I will just comment on the point raised by the noble Lord, Lord Redesdale—there is nothing rapacious about him, and I am sure he is a very benevolent landowner. Like him, I have experience of providing public open space—in my case much closer to a large urban centre—and I understand how people want to access the countryside. We need to be much more flexible and provide points they can go to by public transport or in a car, where they can have a circular footpath, have different experiences, get in touch with nature and be made better in body and mind. I am absolutely committed to that agenda.

What we are talking about here is, in effect, the definitive map, which was introduced in 1949 to provide a legal record of rights of way, giving users and landowners alike certainty regarding the location and status of rights of way. The task of recording those pre-existing rights of way, so called historical rights of way, was considerable and is ongoing. The cut-off date was introduced by the Countryside and Rights of Way Act 2000, as the noble Baroness, Lady Hayman, pointed out, to provide certainty for both rights of way users and landowners. We are committed to reforming how we record historical rights of way on the definitive map, which will see this process become faster, less expensive, less confrontational and less bureaucratic. I totally accept my noble friend Lord Hodgson’s point, and I regret the Kafkaesque process he had to go through to create a diversion of a footpath that improved the walking experience for people. I hope we can improve this, and I hope to set out some aspects of how we seek to do that.

The present regulations address delays to these reforms caused by Covid-19 and will provide another five years to submit applications for recording historic rights of way. To turn to a point raised by the noble Baroness, Lady Hayman, we are aware of the significant backlog of applications and recognise that, even with the reformed procedures in place, it is unlikely that all cases will be concluded by the cut-off date. Although it is for local authorities to prioritise as appropriate, we are committed to ensuring that all valid applications submitted before the cut-off date will remain live until they are concluded. That answers a key point that I think the noble Lord, Lord Rosser, made. We will also introduce exceptions covering certain other unrecorded historic rights of way, such as those in urban areas. These will ensure that key parts of our existing rights of way network are safeguarded.

On the issue of public consultation, which is another point that the noble Baroness raised, a five-year extension is the maximum permitted for most of England under the regulation-making powers. Therefore, a consultation on how long the extension should be would have served little purpose.

I turn to the noble Baroness’s point regarding the amount of time for scrutiny. Care was taken to ensure that the regulations were laid during the morning of 26 October, while this House was sitting. I accept that it is a moot point as the House was about to prorogue, but the process we are going through shows that Ministers can be brought to the Dispatch Box and held to account. That date was no discourtesy to this House, but it was intended to be placed while the House was sitting. I draw your Lordships’ attention to the report published by the House of Lords Secondary Legislation Scrutiny Committee on 9 November, which did not raise any concerns in this regard.

I turn to other points raised in this debate. There is a sense of urgency; I entirely accept the point my noble friend Lord Hodgson made. We want these measures to be carried forward as quickly as possible. I will come on to talk about some of those points further.

The noble Baroness, Lady Hayman, raised a point about issues relating to county authorities. We think that implementing the same extension across England provides certainty for all parties. The exceptions will introduce safeguards from extinguishment for important routes. If we were to have different speeds for different types of local authority it would lead to great confusion.

A number of noble Lords asked how long it will take local authorities to get through the applications. That is obviously ultimately a matter for local authorities and how they are resourced. It is an important element of local democracy, as the noble Baroness, Lady Scott, said: English men and women feel very strongly about footpaths, and there is a strong democratic driver for local authorities to prioritise this. I recognise the other constraints that local authorities have on their spending, but we think the reforms we are committed to implementing will help speed up the process by making it faster and less expensive to resolve historic rights of way applications.

An impact assessment was not carried out because the present regulations will have no direct impact on how applications are made, or on how they are handled by local authorities or the Planning Inspectorate. The Wildlife and Countryside Act 1981 sets out the existing procedures for applying for a definitive map modification order and these regulations will not change that. I again direct noble Lords to the report published by the Secondary Legislation Scrutiny Committee on 9 November, which agreed that a formal impact assessment was not required for these regulations.

We did not carry out a consultation because a five-year extension is the maximum permitted for most areas of England under the regulation-making powers, as I said. Implementing a five-year extension is a compromise between providing the certainty that the cut-off date will bring and recognising that more time is needed before the cut-off date takes effect. I believe this is a fair compromise. In my time as Minister responsible for this policy area at Defra I was assailed on both sides, by access campaigners and land management bodies. The feeling that I was in a pincer movement from both directions made me think that we were just possibly getting this right. I assure noble Lords that we intend to take forward that word “compromise”, which was mentioned a number of times and was an achievement of the stakeholder working group, which meets every month and is very important to us. On the polarities of the argument, you have an often-depicted angry farmer saying, “Get off my land”, and on the other side a rather extreme view that everyone should be able to go everywhere anytime they want. The rest of us—all of us in this House and most people in this country—sit in the middle. It is in all our interests that we see more access and more provision, and that we meaningfully tackle this problem.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative 5:45, 27 November 2023

I sense that my noble friend has reached his peroration. Could we just go back to Oflog? I absolutely accept his good intentions and what he has told us, but we know that we will leave this Chamber, that things will move on and that this Office for Local Government will give those of us who are interested in this topic a chance to chase the laggards, because there will be information, if Oflog has this as part of its remit. Could my noble friend look at this and come back to those of us who have contributed to the debate with conclusions as to what he has found out?

Photo of Lord Benyon Lord Benyon The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

I thank my noble friend. I noted his point about Oflog. I will write to him with a detailed reply and convey his sensible suggestion to my colleagues at Defra. I hope they will be able to take that forward because it is a good suggestion.

I am conscious of the time, but I know there is concern about resourcing. I have talked about local authorities but, on funding for voluntary bodies, we recognise and value the important work carried out by the voluntary sector over many years to identify and apply for historic rights of way to be legally recorded. We want to continue the good working, particularly at a local level, between organisations such as the Ramblers and the land managers and the local authority through local access fora to get these issues resolved in a timely way.

A concern was raised about exceptions. Regulations to except certain historic rights of way from extinguishment will be laid as soon as possible. Officials are currently working with stakeholders to complete these regulations as part of our wider package of rights of way reforms.

There was some interest in what exactly is going to be excepted. We have committed to introduce regulations that will except unrecorded historic rights of way from extinguishment in a number of different ways. This will include all rights of way subject to applications that have not been concluded before 1 January 2031, rights of way in urban areas, and those that appear on the list of streets or National Street Gazetteer that are shown as maintainable at the public expense. Where the recorded width of a historic right of way is less than the actual true width, regulations will ensure that the width necessary for the continued safe and convenient passage of users will be saved from extinguishment—a key concern of many campaign groups.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

I am sorry to interrupt the Minister. I am not a rambler and I do not walk on footpaths nowadays, but I fail to understand why the Government are prepared to extinguish some unrecorded rights of way. I find that very odd: you will have some exceptions but there may be many that are extinguished. I fail to understand, from what the Minister has said, why the Government are doing this.

Photo of Lord Benyon Lord Benyon The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

This was a product of an Act that was passed many years ago. There was a cut-off date of 2026 to give certainty, because otherwise this will roll on and on. It is also for people to be able to understand the complications in certain areas, such as biosecurity and safety. In the past, many footpaths went through farmyards, which are now not safe places for walkers to go, so this is also to be able to divert those paths to where they are safe, and protect stock from issues related to that. But the key point is about creating certainty; that is what we seek to do. By 2031, we should be able to get most of those historic rights established. I hope I have been successful in getting that point across, but I am happy to follow this up with meetings or further correspondence with noble Lords.

We recognise the benefits that our rights of way reforms will bring, and are working to complete and lay the necessary secondary legislation as soon as we can. Officials will continue to work closely with key stakeholders, including Members of this House, to ensure that all sides will benefit from these reforms.

The noble Earl, Lord Russell, raised a point about the cut-off date; there are approximately 4,000 applications for definitive map modification orders waiting to be determined by local authorities, most of which are applications to recorded historic rights of way. We expect the volume of applications to increase up to the cut-off date, which is why we have committed to ensuring that all applications remain live after the cut-off date until they are concluded—a key concern of the noble Lord, Lord Rosser. The reforms we are introducing will help to address the backlog, making it faster and less expensive to resolve historic rights of way applications. Commencing and extending the cut-off date now has provided certainty to all parties, both that the cut-off date will have effect and over when it will apply. By extending the date to 2031, we have provided an additional five years to submit these applications. We fully recognise the importance of regulations specifying exemptions from extinguishment, and we are committed to introducing these as soon as possible.

The noble Earl, Lord Russell, asked about the additional financial burden. I think I have addressed that. This will be a continuing concern for local authorities. We recognise that, but we hope that there are existing resources available to suit this. The noble Lord, Lord Rosser, asked how many local authorities are affected. All local authorities in England are affected—all 317 of them. The stakeholder working group meets monthly and has all parties of interest attending. It is chaired by a senior Defra official, and Ministers take close interest in what they bring forward and have been key to the debate surrounding this.

I recognise that a great many other points were raised. I do not believe I have the opportunity to answer them all in detail, but I will reply in letter form, if I may. I thank noble Lords for their attention. I hope that what I have said has persuaded the Members who tabled these Motions of this Government’s commitment to greater access and to seeing historic paths recorded.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs)

My Lords, I thank all noble Lords who took part in the debate. I particularly welcome my noble friend Lord Rosser, and listened to him speak with such passion and authority today.

When the Minister started, I thought perhaps he had listened to the debate and seen the light, as he seemed so keen on rights of access and preserving public rights of way. It was disappointing that he then went on to not acknowledge the challenges facing local authorities and voluntary groups to manage the task ahead of them. On the consultation point, I recognised in my speech that the cut-off date could not be postponed beyond 2031, but consultation does not have to be just about timing. It could have looked at exemptions and resources, and considered that as part of a wider consultation on the matter. But I hope the debate will enable the Minister to focus on the task ahead and keep a close watch on progress, because that is what we all want. Having said that, I beg leave to withdraw my Motion.

Motion withdrawn.