My Lords, I am grateful to my noble friends Lord Greaves and Lady Hamwee for explaining their amendments. Before I start on my notes, I should draw my noble friends’ attention to the underlying conditions that local authorities need to reflect on before they make orders. I think that they condition the whole approach and, to some extent, satisfy some of the anxieties that my noble friends have expressed.
I can assure my noble friend Lord Greaves that, like him, I fervently believe that public spaces are there for everyone to enjoy, but they should not be ruined by a careless and irresponsible minority. These new orders are designed to allow maximum flexibility for the council, meaning that restrictions on access to, or use of, any land should be considered only as a last resort. However, where restrictions on access are necessary, the option should be available to protect victims and communities from anti-social behaviour. That is what we are about and it is what the Bill is about.
On Amendment 41, I accept that the categories of land listed are important and, indeed, worthy of the further debate they have received today. This is exactly why many of them are covered explicitly in the draft guidance. However, making this amendment would stop the local council protecting those spaces more generally from issues that might deter usage. It is important that we do not inhibit the flexibility provided by these new orders.
Perhaps I may illustrate the point. Many of the categories of land listed here are commonly used by dog walkers as well as children. Given the risk to children of diseases spread by dog faeces, it is only right that a council has the ability to introduce measures to ensure that dog owners clean up after their animal. In addition, where some of these areas of land have become a focal point for people to congregate and drink alcohol, making usage by others unpleasant or even impossible, the council should be able to prohibit the drinking of alcohol to free the space for the majority who want to use it responsibly. The amendment as drafted would preclude the council providing these protections or any others that were necessary on the categories of land listed.
Amendment 41A is more specific and is designed to protect any rights of common, such as the right to graze animals, enjoyed by individuals or groups on common land. This amendment is, I believe, unnecessary. A public spaces protection order would not be used to stop a commoner exercising his right of common. In the case of rights of common, it is hard to imagine a situation where a right exercised by a commoner could result in anti-social behaviour, unless it were being done in a particular way. The new flexibility afforded to councils with the public spaces protection order means they can address the problem element of the behaviour while protecting the wider rights.
Amendment 54 would ensure that certain categories of land could not have access restricted. First, let me say that I accept the importance of maintaining access to footpaths, bridleways and byways so that they are available for the enjoyment of all. However, the list in Clause 61 relates to those highways that are of strategic value. This means that, in all probability, restricting access would have a significant impact on the community, if not the region or the country, that far outweighs the impact of any problem behaviours. I do not feel that the same can be said for all public rights of way. However, I agree that they deserve special consideration and I am happy to see how this can be made clearer in the guidance, but where the anti-social behaviour—and it is the anti-social behaviour that we are dealing with, not access—of those using these routes has reached a stage where the community is suffering, the council should have the ability to restrict access either in part or in totality.
I would like to make one more point which I hope my noble friend will appreciate. Due to the way in which the current orders in this area are framed, in many cases a gating order, and indeed the complete closure of a right of way, is the only option available to councils. The new order seeks to change this. Problem behaviours and anti-social individuals and groups can be dealt with more effectively under the new power, ensuring that the restriction of access is necessary only as a last resort. We have made this clear in the guidance, but I am content to work with interested groups such as the Open Spaces Society and the Ramblers, to see whether it can be made any more explicit.
The other amendments my noble friend Lord Greaves has in this group relate to restrictions on rights of way over a highway and appropriate safeguards. Amendment 53B seeks to provide further safeguards on the list of things that need to be considered before the right of way over a highway is restricted. I believe that as currently worded Clause 60 provides those assurances. However, we can consider how to go into more detail in the accompanying guidance to ensure that my noble friend’s concerns are addressed.
Amendment 53D would mean that all those affected would have to be notified in writing. In most cases, I think this would probably be correct. However, it may be that for some orders another medium would be more appropriate, such as speaking individually to those affected if there is only a small number. As such, I do not believe we should tie the hands of councils in this way in the Bill.
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I am also sympathetic to the intention behind Amendment 53E. When restricting access to a highway, the council will have to publicise it properly. It seems sensible that a sign at either end of the footpath would be the way in which this is done. Likewise, as we have already discussed, many councils will advertise these restrictions on their websites and through a number of different channels. However, I believe this is something that we can cover more effectively in the guidance and I do not believe it should be in the Bill as it could place an unnecessary burden on councils where those channels are not appropriate.
Again, I agree with the intention behind Amendment 53F, which I believe would be best practice anyway. Taxpayers would expect their local agencies, as public bodies, to be working together to address problems and sharing information of this type should be the norm. I do not believe that it needs to be in the Bill but, again, I am happy to further clarify this in guidance.
I hope I can also provide some assurances on Amendment 53FA, tabled by my noble friend Lady Hamwee. The legislation makes clear that when a public right of way is restricted over a highway, those who occupy premises on that highway cannot be precluded from accessing it. This is perfectly right, but my noble friend suggests that “users” of those premises should be included. I sympathise with the sentiment, but I fear that such a definition could open the exception out too far and make it difficult for local authorities to protect communities. However, I would remind my noble friend that, as I said at the beginning, in order to make a public spaces protection order the local authority has reasonably to believe that the behaviour justifies the restrictions. Restricting access to a highway is a significant step and, as such, the conduct it is weighed up against is also likely to be more serious. I believe that councils will use the most restrictive elements of this power only when the behaviour is such that it warrants the restrictions. We are back to the principles which are enshrined in Clause 55.
In conclusion, we will look at how we can take account in our guidance of a number of the points that have been raised in these amendments. In preparing the final guidance, we will continue to work with interested parties such as the Open Spaces Society. With those assurances, I hope that my noble friend will withdraw his amendment.