Clause 2 - Gating orders

Clean Neighbourhoods and Environment Bill – in a Public Bill Committee on 18th January 2005.

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Amendment proposed [this day]: No. 2, in clause 2, page 2, leave out lines 10 to 15 and insert—

'(3) A council may make such an order to restrict the public right of way where specific evidence exists that—

(a) illegal business activities have been conducted; or

(b) incidents of recorded crime have taken place; and'.—[Miss McIntosh]

Question again proposed, That the amendment be made.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire 2:30 pm, 18th January 2005

I remind the Committee that with this we are discussing the following amendments: No. 31, in clause 2, page 2, leave out lines 12 and 13.

No. 32, in clause 2, page 2, line 22, after 'locality', insert

', with particular regard to persons with a disability that limits their mobility.'.

No. 33, in clause 2, page 2, line 24, leave out

'a reasonably convenient alternative route' and insert

'a route which provides a reasonably convenient alternative route to the public at the times when the gating order will be in force.'.

No. 46, in clause 2, page 2, line 24, at end insert—

'(d) the likely effect of making the order on statutory undertakers whose apparatus is located in on over or adjacent to the highway.'.

No. 34, in clause 2, page 2, line 30, at end insert—

'( ) any highway, any part of which crosses or abuts agricultural land;'.

No. 35, in clause 2, page 2, line 43, at end insert

'; or where the highway is the only or principal means of access to any premises or land used for business.'.

No. 47, in clause 2, page 2, line 43, at end insert

'or the exercise of any right by a statutory undertaker'.

No. 36, in clause 2, page 3, line 11, at end insert

', provided that any such order shall require that the barrier be maintained in an open position during any such times as the restriction is not in force.'.

No. 37, in clause 2, page 3, line 13, at end insert

', provided that the installation of such a barrier does not restrict access to the highway during such times as the restriction is not in force to the extent that any previous legitimate use of the highway is prevented.'.

No. 48, in clause 2, page 3, line 13, at end insert—

'(7A) A council installing, operating or maintaining any barrier authorised under subsection 6 shall ensure at all times access through the barrier for statutory undertakers.'.

No. 49, in clause 2, page 3, line 22, at end insert

'and statutory undertakers whose apparatus is located in on over or adjacent to the highway.'.

No. 39, in clause 2, page 4, line 6, at end insert

'; or no longer complies in relation to it'.

No. 40, in clause 2, page 4, leave out lines 7 and 8.

No. 41, in clause 2, page 4, line 26, leave out 'may' and insert 'must'.

No. 42, in clause 2, page 4, line 30, at end insert—

'(d) the posting and maintenance at entry points to any highway subject to a gating order of a notice stating the nature of the restriction of the right of way and the times when the restriction is in force.'.

No. 43, in clause 2, page 4, line 33, at end insert

'; excepting those persons who would be identified for the purposes of sections 129F(4) and 129F(6)(b) below.'.

No. 10, in clause 2, page 4, line 39, leave out 'may' and insert 'must'.

No. 11, in clause 2, page 4, line 44, leave out 'may' and insert 'must'.

No. 12, in clause 2, page 5, line 2, at end insert

'; and they are satisfied that no variation under subsection (2) above would be expedient in all the circumstances for the purpose of reducing crime or anti-social behaviour.'.

No. 50, in clause 2, page 5, line 32, at end insert,

'''statutory undertaker'' means—

(1) the person by whom a relevant statutory right is exercisable (in the capacity in which it is exercisable by him); or

(b) a person having permission under section 109 of the New Roads and Street Works Act 1991 (c. 22) to execute road works, as the case may be references to an undertaker having apparatus in on over or adjacent to the highway, or to the undertaker to whom apparatus belongs, shall be construed accordingly.''.'.

No. 13, in clause 2, page 5, line 19, at end insert—

'(d) the periodic reviewing of gating orders with respect to their continuing expediency in all the circumstances for the purpose of reducing crime or anti-social behaviour; and with respect to the requirements of subsections (2) and (3) above.'.

No. 44, in clause 2, page 5, line 19, at end add—

'(d) the reviewing of gating orders following requests from a person who would be identified for the purposes of subsections (4) and (6)(b) above.'.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I made the point this morning that the Bill does what it can, but that it cannot solve all the problems of the universe, land ownership and a variety of other things, and that it is not a magic wand or a panacea. We want access to be limited when it causes problems of disorder and difficulty for local people, but not when such limits are not needed. Of course, that needs to be applied in the context of good co-operation, with the exchange of information between a variety of organisations, including the police and local authorities. Our discussions have made it clear that the instrument deals with some significant problems, but that how it is used and how local intelligence is developed are important.

Amendments Nos. 2 and 31 are both significant, as they probe the need for alley-gating. It is a lot simpler in practice than in theory. I can say that with a little authority, having dealt with some 20 applications under the requirements of the Countryside and Rights   of Way Act 2000, which requires local authorities to make proposals to designate an area and to provide evidence that they need to do so.

When such evidence has been given, it has been fairly clear that people have gone to the trouble of talking to local residents, the police and crime reduction units, and have co-operated with the local authority, because a consensus view, based on experience, has been clearly enunciated in the proposal. I believe that the same will happen under the present requirements. The points made in debate about the need for consultation, for emergency services and others to be able to gain access whenever needed, and, generally, for community support were all well made.

Most points raised by the amendments could be dealt with more appropriately in regulations. Indeed, on one or two matters, when hon. Members referred to particular arrangements, they made exactly that point and were looking for an assurance that regulations would deal with such issues. Some of those are already covered in the legislation.

I underline the fact that alleys that are closed under the Bill's provisions remain a highway. As a result, a variety of provisions relating to a variety of organisations—I shall return to the point in a moment—will still apply as if the alley-gating had not taken place. There will be no need to recreate arrangements that are already firmly in place in the law, but I accept that that needs to be made absolutely clear to authorities when they are taking decisions on alley-gating and to the public, who should not be worried if they are given the appropriate reassurance.

The hon. Member for Vale of York (Miss McIntosh) asked about the possibility of vehicles being on an area that has been alley-gated. I confess that I am not totally sure of the circumstances she has in mind, but I would be happy if, outside the Committee, she gave specific examples of what concerns her. We could work them through as illustrations and I could respond in writing.

The essential point is that a gated alley remains a public highway. Local authorities will have a duty to remove obstructions, and any vehicles on it must be legal, just as they must be on the highway. Concerns of the sort raised by the hon. Lady are already dealt with adequately in legislation, but we are happy to respond to questions on best practice and making things clear. I reassure the Committee that the basic point is absolutely clear.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

What will happen if the alleyway in question is owned by a private landowner who cannot be found or traced, yet the alleyway needs to be gated? In my constituency, Mitcham and Morden, where alley-gating has been terrifically successful, often everyone along the terrace of properties agrees, apart from one householder, but that one objector prevents the gating from happening. How will the measure be implemented?

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

My hon. Friend is right that we are trying to avoid that. If there is relevant evidence, common sense can be applied so that the gating is not   obstructed unreasonably. The purpose of the measure is to ensure that obstructions—for example, whether ownership is known or there is doubt about it—do not stand in the way of dealing with the issues.

Where there is an unadopted alleyway, our advice is that the local authority should adopt a common-sense approach. If agreement can be reached between all the parties that the local authority can identify, the authority should gate an alleyway. Local authorities are asking us to remove the legal impediment to gating public highways; they believe that the impediment lies there. If an unadopted alleyway has been used as a through route for 20 years or more, it almost certainly qualifies as a public highway and will be covered by the clause.

So, I accept that, in some situations, legal advisers to local authorities may need to consider the case, but we believe that, following the changes that we are providing, the legislation will enable authorities to deal with the situation. If my hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh) has a specific example in mind, I am happy to use it as a test case with our officials. I know that our officials look forward to the intellectual stimulus of engaging with specific examples.

One general point was made, which does not apply to any of the amendments specifically. It is the question whether the three elements in proposed new section 129A(3) must be satisfied. The answer is yes. We are talking about

''premises adjoining or adjacent to the highway''—

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

Order. The Minister is relating information that does not relate to the amendment. It may be appropriate on clause stand part.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I am grateful, Mr. Taylor. I wanted to answer a query, but I will simply state the factual information that all three elements must be satisfied. If necessary, I will expand on that point in due course.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I do not think I can, because the Chairman has just told me that this is business for clause stand part.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

If the point that the hon. Member for Guildford (Sue Doughty) wants to raise relates to the amendment we are discussing or to one of those in the group linked to it, I will consider it relevant.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I thank the Minister and you, Mr. Taylor, for your indulgence. The question that our probing amendment asks is that if proposed new section 129A(3)(a), which concerns

''premises adjoining or adjacent to the highway are affected by crime or anti-social behaviour'', stays in as a point that must be satisfied, what will happen when the premises adjoining the highway are not used for antisocial behaviour, but someone gets mugged in the alley? 

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

The provision is intended to deal with situations where the alleyway causes, encourages or fails to give impediment to criminal and antisocial activity that affect the people adjacent to the highway. It is difficult to think of somewhere being used in the way the hon. Lady suggests without that having implications for the neighbours. If straightforward criminal activity is taking place, closing the alleyway does not seem to be the right response.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I was thinking of where I was brought up, where there was a snicket that went through the middle of a circular road that was accessed from the front. It was badly lit. Somebody could be attacked there, but it would have no bearing on the neighbours on either side because the person would have been using the snicket to cut from one area to another. That is the example I have in mind—a path used as a shortcut to somewhere else that does not have any bearing on the adjacent areas.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

No, but is difficult to see why the provision should be used to deal with that situation. The hon. Lady sees the provision as some sort of magic wand that can deal with all circumstances, but it is clear that we do not want to lose access unless that is necessary. For instance, if there is a badly-lit area, matters that ought to be dealt with before consideration is given to closing it down include the lighting of the area and the question whether there should be a police or intelligence approach if an individual or a group is using a snicket or alleyway for nefarious activities. That is clear in the hierarchy of approaches that one ought to take.

The closure of an alleyway may have a wider implication for those immediately adjoining it and the provision is intended to address the disruption of the quality of life for the people on either side or immediately adjoining it. Indeed, that issue has been brought up time and again by colleagues throughout the Government.

I shall return to the other amendments in a moment, but the essential point to make about the first two is that one would make it even easier to close alleyways, which goes too far in one direction, and the other would constrain the requirements, meaning that one would have to produce evidence of business activity and specific criminal activity rather than of the generality of crime and disorder. Between them, the amendments demonstrate convincingly that we have the balance right, which is why I am not willing to accept either of them.

Amendments Nos. 32, 46, 47, 48, 49 and 50 are undesirable because regulations can take account of the needs of statutory undertakers, disability groups and others, which are covered by the draft amendments. I am happy to assure Members that the regulations will require councils to take account of the needs of disabled people, such as access issues.

Proposed new section 129C will require regulations for notification of persons likely to be affected, so that they may make representations. I can give an undertaking that regulations will include the requirement to consult on issues relating to mobility,   but specific requirements for consultation are best dealt with by regulations. That allows the flexibility for us to learn as time goes on. There will be public consultation—a wider opportunity to comment on the content of these regulations. Local authorities are, in any event, bound by the Disability Discrimination Act 1995 on matters concerning the public right to use a public highway.

Proposed new section 129A(3)(c) already says that the council must be satisfied that

''it is in all circumstances expedient to make the order''.

It must include the effect on statutory undertakers and utility companies, such as the electric company, in its considerations. We believe that the requirements in respect of statutory undertakings, disability, utilities and emergency services can be thoroughly dealt with where they are not already dealt with in legislation, as I mentioned earlier, where their rights are already protected. Any gated alleyway will still be a highway. Therefore, there is a protection for those.

Amendments Nos. 2, 12, 31, 33, 34, 35, 36, 37 are undesirable because they are already covered by the clause and would severely limit local authorities' flexibility in gating nuisance alleyways. Many problems in alleyways come from antisocial behaviour and do not fall within the descriptions ''illegal business activities'' or ''recorded crime''. Gating schemes greatly reduce these problems. It is important for councils to be able to ''gate'' an alleyway, snicket or gully where there is clear evidence that open access contributes to antisocial behaviour and criminal activity, whether it involves recordable offences or criminal activity that comes under the heading non-recordable, notifiable or—the final catch-all—''any other offence''.

We have made progress as a result of recent legislation through new section 118B of the Highways Act 1980, which was introduced by the Countryside and Rights of Way Act 2000. The amendment would nullify the effect of that measure, so we would be unable to put into practice the lessons that we have learned over the past couple of years.

On the question of a physical barrier, there is already a requirement for local authorities to consider whether there is a reasonably convenient alternative route for the public, regardless of what times of day the order says that the alleyway concerned may be gated. The amendment would allow certain alleyways to be gated even if antisocial behaviour or criminal offences are not present. That is clearly undesirable, as the appropriate checks and balances need to be in place, which is what we sought to achieve with the clauses. Such an amendment could result in many requests for gating orders and, if large numbers of areas were gated where there is no need for that to happen,, it could severely inhibit the law-abiding majority going about their daily business.

A reference was made to abutting agricultural land. Section 129A of the Highways Act 1980 says that before making a gating order, the council must be satisfied that 

''the existence of the highway is facilitating the persistent commission of criminal offences or anti-social behaviour''.

Where a highway crosses or abuts agricultural land there will often be other means of access to the premises. The erection of a gate would not achieve the preventive result, since perpetrators would not be prevented from entering the highway. However, there may conceivably be cases where a highway abuts agricultural land, but there is a real and reasonable need to gate it because it is the only means of rear or side access to the property. This amendment would deny a gating order in those circumstances.

Amendments Nos. 10, 11, 38, 41, 42, 43 and 44 are undesirable because they would remove flexibility at a local level. They would severely restrict the council's discretion over when to hold a public inquiry, vary or remove the restrictions imposed by the order and notify local residents. The local authority is best placed to decide when those actions should take place. Revoking restrictions prematurely could lead to a resurgence of the crime and antisocial behaviour that the order was made to combat. We would regard it as good practice to remove the restriction once the conditions that led to it have ended or been removed. To require reviews or make them compulsory would be too restrictive and bureaucratic. It would be costly to councils to have to reinstate restrictions that were lifted prematurely.

Amendments Nos. 39 and 40 are undesirable because they would enable someone to appeal against the validity of an order on the grounds that the requirements under new part 8A of the 1980 Act are no longer met, although at the time of its introduction the order did comply with such requirements. They would therefore place a further obligation on the High Court to consider the validity of gating orders at a time in the future when the requirements under part 8A no longer apply in relation to the gating order.

The clauses already allow a local authority to vary or revoke the gating order if the restrictions imposed on the highway are no longer needed, so it is not necessary for the High Court to become involved. It would be most peculiar to remove the decision from an elected council to the courts. It is important to remember that we are not removing the involvement of the High Court within six weeks of the creation of the gating order, should a person wish to question the validity of its creation.

We are resisting amendment No. 40 because it is linked to amendment No. 39, which we also resist, and because it would make a consequential amendment removing the six-week restriction on applications put forward to the High Court. That consequential amendment would allow a person to apply to the High Court to question the validity of the gating order at any time after the order is made, rather than restrict it to six weeks. That arrangement goes against the principle of legal certainty and legal policy that allows a definite period for challenge.

I have some sympathy with amendment No. 13, because there is a possibility that closures might be maintained in some cases long after the need for them has disappeared. Indeed, that is why we have designed clause 2 to allow rights of way to be re-established if   conditions change. That is quite different from the existing alley gating provisions in section 118B of the 1980 Act, where the fundamental problem is that once the order is made, the right of way is permanently extinguished. It may not prove possible to re-establish it, even where the problems that originally led to its closure have been eliminated.

The same result that the amendment seeks to achieve could, however, be achieved through guidance, and I am certainly prepared to look at that approach. I share the intentions of those who tabled the amendment, but I suggest that we should adopt a best practice approach rather than include in primary legislation a requirement that might prove inflexible and bureaucratic. Let us, to a degree, leave the matter to the council for judgment, but let us offer guidance that there should be a periodic review unless it is absolutely clear that the conditions that led to the establishment of an order continue.

The clause enables alleyways to be reopened where there is no longer a need to gate them for the purposes of reducing crime or antisocial behaviour. The addition of a requirement periodically to review the need for the order will put pressure on councils to reopen highways promptly when there is a case for doing so, and discourage them from closing highways and then simply forgetting about them.

I hope that I have shown that in many cases we share the concerns that have been expressed or at least the intentions behind the amendments, but that the primary legislation that already exists protects the situation adequately in terms of the utilities and the emergency services. The regulations that will be made will deal with the other issues that need to be addressed—a fair point that was made in the debate. In ensuring that proper advice is given to local authorities, we will see that the existing legislation is drawn to their attention so that there is no doubt about what the Bill does and does not change in the existing law. I hope that the hon. Member for Vale of York is happy not to press her amendment.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport) 2:45 pm, 18th January 2005

The Minister seems to have great difficulty in seeing the logic of many of our amendments, although I am grateful to him in connection with amendment No. 2. He said that we can press him, and through him his officials, about specific instances. That is welcome. He also made great play of giving us an undertaking that most of the points that we had covered in the amendments would be included in regulations. My colleagues and I have great problems with that procedure. The whole point of amending the Bill and having stand part discussions is that that is the proper exercise of parliamentary scrutiny.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

My first engagement in opposition on a Standing Committee involved spending an awful lot of time talking about regulations. I got no hint from the Government of the time about anything that would be in the regulations, whereas I have given a clear indication to the Opposition that where they have   made good points, they will be taken on board. The hon. Lady should recognise that my generosity contrasts with historical experience.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

The Minister has the advantage over me because my historical experience of the House does not pre-date 1997. He went only so far as to say that he would give a hint. I hope that I can press him further on that. He also referred to the Countryside and Rights of Way Act 2000, which, as he admitted, has effectively been in operation for only two years. The Government would have been extremely well advised to have allowed a bigger body of experience to build up than has been possible over that short time. A verbal confirmation or commitment rather than a hint of what is going to be in the recommendations would be most welcome.

We seek from the Minister one of several possible conclusions to the debate. The first would be for him to agree that those with statutory undertakings must be afforded access to apparatus and equipment in the highway at all times. We have already discussed the scenario involving the emergency services—the ambulance and fire services and the police. I rehearsed all the various statutory undertakings that may be included, and I want to press him further on that. The second conclusion to the debate would be for him to accept the amendments as we have drafted them, or since we do not have the advantage of the huge resources in his Department or of parliamentary counsel, for him to table amendments on Report to substantially the same effect. Will he also give a positive assurance that the regulations on the procedure for gating orders afford sufficient protection in respect of the statutory undertakings?

We tabled the amendments because we believe that the Bill could have the albeit unintended consequence of placing utility companies in a difficult position with regard to their statutory and contractual duties, and that it could also place householders on the other side of the barrier in an even more frustrating position. In their bid to deal with antisocial behaviour or congestion problems on a public highway, the Government are potentially placing the utility companies in a more rigid regime of permits and notices in undertaking works in the streets. If the amendments are not considered in a positive light, the utilities may not be able to access their equipment on a highway or alleyway that has been gated. None the less, as we will have an opportunity to return to this matter on Report and we have had an inkling from the Minister that he is going in the right direction, I shall not seek to press the amendment.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I have listened with care to the points that the Minister made. We got the result that we wanted, because we were probing to see what would happen in the regulations. In some areas, we got a clearer view. I continue to share the views expressed by the hon. Member for Vale of York about the clarity of information, particularly for the utilities. I hope that   that will find its way into regulation or into some form of advice so that the councils and people making gating orders will be encouraged to provide keyholder information and access information. That is important, and the case was well made.

I was a little bit sorry that the Minister dismissed quite so airily my concerns about mapping areas as being gated. I prefaced my comments by saying that that was part of the bigger picture. Within the scope of this Bill, we are talking about a small aspect. Certainly, these things cost money, but there is no guarantee that the information will be passed across in a formal way, and I remain concerned about that. I accept that the matter may be better dealt with elsewhere, but I felt that it was important to air it at this stage. We welcome the fact that it appears that there will be more regulation and more information, but I am still concerned that all the criteria in new section 129A(3) have to be met in order to have a gating order. I understand that the Minister has had experience in this matter, but I wonder whether we might be excluding some eventualities. We can revisit that point at a later stage.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

We now come to the clause stand part debate. We have already had an extensive discussion on most of the clause, so I shall take a bleak view of any repetition of points that have already been made in significant detail.

Question proposed, That the clause stand part of the Bill.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport) 3:00 pm, 18th January 2005

I shall be very mindful of your words, Mr. Taylor.

I wanted to take up a number of issues with the Minister. One is the position of the partially sighted and, indeed, the outright blind, and other disabled people under clause 2 generally. It has been brought to our attention that, ultimately, the issue is not so much a case of antisocial behaviour orders. For example, when an alleyway—where wheelie bins might normally be placed for collection—has been closed, disabled people may have to move a substantial distance to place the wheelie bin in a different location.

With regard to the publication of the proposed order, has the Minister received representations and can he give the Committee a commitment that the availability of these orders will be in formats such as large print, audiotape and Braille so that they are accessible to people with sight problems? The proposed order should also be sent to local talking newspapers so that people with sight problems become aware of it. In my experience and I am sure in that of the Committee and the Minister as well, it is quite often the case that those who are partially sighted can be hard of hearing too, so this is particularly important.

I have to declare that I was at a boarding school in Harrogate in the north of England, where we were more used to crocodiles than alligators—I think I will stick to the script. However, I understand that, in the city of York, we now have alley gating. York switched to Liberal Democrat control—we do not seem to be doing terribly well, but that will change imminently. Could the Minister explain how the proposals before the Committee this afternoon will successfully curtail crime in that regard?

We had a lengthy discussion about ownership. What has been made perfectly clear to landowners, or those who need to access the land is that under the present drafting of clause 2—and this is a general point for which it was very difficult to table an amendment—it is very unclear on whom the responsibility for the installation, maintenance and operation of the barrier or gate would lie. Could the Minister take this opportunity to clarify that?

The Minister will have seen the forceful briefing from the Open Spaces Society, which opposes clause 2 outright. It believes that the Bill gives the councils too sweeping powers and it shares our reservations about most of the detail having been left for regulations to be made by the Secretary of State for Environment, Food and Rural Affairs or the National Assembly for Wales. The Society raised a point about the increase in rural crime. Much of clause 2 seems to relate specifically to areas that I can point to in my constituency of Vale of York—alleyways in market towns such as Thirsk, Bedale, Easingwold, Boroughbridge, Pocklington, New Earswick and so on, all of which are villages on the outskirts of York—but it is completely silent on how it will apply in rural areas.

There is provision in section 57 and schedule 6 of the Countryside and Rights of Way Act 2000 to enable local authorities in areas designated as crime hot spots to apply to close or move paths on the grounds of preventing or reducing crime. Could the Minister tell us to what extent those provisions have been put to the test and why the Government are now introducing the scheme in clause 2?

I referred in the debate on clause 1 to the child impact statement of the all-party parliamentary group on children, which raised the possibility that children and young people would be excluded from their daily route to school or college, health services, leisure facilities or other child-related facilities because of the provision. What representations has the Minister received in that respect and what thought has he given to them?

A potential problem is that of the local authority supplanting the role of the local police. As doubts have been expressed about communications between the police and local authorities in that respect, can the Minister put our minds at rest on the matter?

Overall, the process for implementation of gating has previously proven bureaucratic due to the length of time it takes to obtain stopping-up orders. Does the Minister envisage a swifter process under the proposed new section 129C? How much notice needs to be given, and what is the proposed timetable?

If the enforcement element could be circumvented through correct planning and local action plans in which the needs and wishes of communities are addressed through gating, that would be welcome. In Liverpool, which is cited as an example of good practice, many of the alleyways are well maintained and the use of gates has been welcomed. That has been achieved largely through consultation, and problems with the provision of access to the emergency services and other users have been avoided.

In conclusion, would the Minister consider whether further consultation is required with organisations that represent disabled people, such as the Royal National Institute of the Blind and the Royal National Institute for Deaf People, to ensure that information about gating orders and the procedures leading up to them is as widely distributed as possible and is as clear as possible to those who are disabled through sight, hearing or in other ways?

Gating orders should be decided on a case-by-case basis to assess whether they tackle the problem. The Minister will recall that, although the summary of responses to the consultation contained widespread support for gating orders, respondents felt that long-term implications could result from specifying in the Bill the types of crime that could give rise to them. Setting out the crimes in statute could lead to calls for other crimes also to be set out in statute. That could inadvertently result in local crime audits ceasing to be required because strategies would no longer be driven by local issues. The summary of responses states:

''Respondents emphasised the need for the requirements on CDRPs not to be overly prescriptive and urged that priorities need to continue to be driven by local crime audits.'' 

I think that the Minister is on the record as saying that that is the case.

What role would the provisions in the clause play in instructing local authorities to invest in the good design, staffing and maintenance of public spaces to tackle antisocial behaviour or to prevent the start of a downward spiral? What will the penalty be if somebody uses the public highway in contravention of a gating order, as the Minister said, when summing up the debate on the amendments, that the route remains to all extents and purposes a public highway? If highways are to be gated at specific times, who will judge the public need to use the route and how will it be judged? How will the public be kept informed of the times when a route will be open and how will the locking and unlocking of the gating be enforced?

I am sure that the Minister will wish to expedite the administration under the clause as far as possible and will not wish the disabled group to claim that it was not properly consulted. It would be helpful to know who the ''appropriate person'' is who may make an order. Will the Minister also, at my prompting, specify the points that he intends to make under new section 129A(3)(a) in relation to gating orders?

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Foreign and Commonwealth Affairs)

May I say what a delight it is to serve under your chairmanship, Mr. Taylor? I want to ask the Minister three or four specific questions about the contents of the clause.

The first refers to new section 129A(3)(a). What criteria will the council use when determining whether a right of way is facilitating crime? Will there have to be a record of crimes and antisocial behaviour having taken place? Will those recorded crimes and antisocial behaviour have to take place over a specific period? Will simply the recorded crime be taken into account or complaints to the local council as well? Will there have to be formal complaints or will word of mouth be sufficient?

My second question relates to new section 129A(3)(b). Will the Minister elaborate on the definition of the word ''persistent''? How many burglaries have to take place to be classed as persistent?

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

It is my recollection that, when amendment No. 2 was debated this morning, we had an opportunity to cover those points. We have many important issues to go through. To revisit areas that we have already debated will not take us much further.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

Order. I am sympathetic to what the hon. Lady says. I hope that the hon. Member for Boston and Skegness (Mr. Simmonds) will be able to ask his questions concisely and pithily.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Foreign and Commonwealth Affairs)

I am grateful for your guidance, Mr. Taylor, and for the intervention from the hon. Member for Guildford. I apologise to the Committee that I was not here for much of this morning's   proceedings. I had to attend another meeting, which I could not move. I shall move on quickly from that point.

The third element of my questions relates to subsection (7) of new section 129B. That refers to the cost to the local authority of making the order, which was estimated in the regulatory impact assessment at £1,000. What does that £1,000 include? Does it include installation, operation or long-term maintenance costs? Does it simply cover the costs of the legal application and administrative costs of making the order?

The final point that I want to make is in support of my hon. Friend the Member for Vale of York, who sits on the Opposition Front Bench. I represent a rural constituency, where concerns have been expressed by landowners about access on their land—highways, bridleways and footpaths—being gated. Can the Minister explain how that will operate in practice? It is unclear from the Bill.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire 3:15 pm, 18th January 2005

Order. Those points were covered in this morning's debate. The hon. Gentleman should bring his remarks to a close and refer to the record of this morning's proceedings when it is available.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I am grateful for the opportunity to speak briefly. I dealt with most of the issues in this clause stand part debate when I responded to the earlier exchanges. Although it is nice to have the added presence in the Committee of the hon. Member for Boston and Skegness, I refer him to the Hansard record of our earlier discussions, when I spoke specifically about the issue of evidence. He refers to representing a rural constituency, but I assume that he is suitably embarrassed by and contrite over the reasoned amendment—I referred to it last week as the unreasoned amendment—which said that no issue dealt with in the Bill was a concern in rural areas. His contribution illustrates how ludicrous that was.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I was merely responding to the hon. Gentleman's contribution.

I found it difficult to understand some points raised by the hon. Member for Vale of York. For instance, there seems to be a wish to alley-gate roundabouts in the general vicinity of York. I am sure that there is a serious point there about consultation. Of course, consultation should allow people to know about decisions that could affect them.

The clause is important and it gives us an opportunity to streamline local authorities' ability to gate an alley and prevent local people from having their lives ruined by an arrangement in their vicinity, which, if it does not encourage crime and disorder—it is difficult for physical arrangements to do that—appears at least to harbour crime and fails to prevent the crime and disorder that spoils their lives.

The Open Spaces Society's response is therefore disproportionate to the targeted proposals before the Committee. For instance, it opposed the closing off of some alleyways in Manchester, which would affect Manchester's designation as being able to do this in areas where there is an effect on people's lives. That is missing the point.

I do not think that any member of the Committee or any Member of the House wants to close off alleyways or alleyways that are useful, unless their closure would relieve people from the misery of crime and disorder. That is why there is a great deal in the clause that is flexible: it allows local authorities to put in place their own requirements, or to remove them if they are not needed, and to take action on timing if a closure is needed only at night. Such arrangements emerged from our consultation, which included a great deal of discussion with local authorities.

Regulations will deal with those details that are inappropriate for primary legislation. However, as I have already said, primary legislation contains provisions to protect the utilities and so on. I covered that point clearly, so I shall not labour it.

The point was made that it is unclear on whom responsibility for erecting the gate and the cost will fall. The provision is permissive and when the gating order has been made, the council or another occupier of the highway can put up the gate, paid for by the local authority, or it can be done jointly by the local authority and the residents, or it can be done with a Home Office grant. The clause puts the permissive arrangements in place so that the work can be done.

The regulations will be subject to parliamentary scrutiny and I have given an assurance on the extent to which points made during this debate will be taken into account when drafting the regulations and bringing them to the House for consideration.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.