My Lords, I support and shall speak very briefly to Amendment 471 in the name of the noble Lord, Lord Hodgson. It is really important to recognise at the outset that his amendment is about one specific thing. It is not about the merits or otherwise of public access; it is about the future of the estimated 40,000 miles of historic public rights of way that were omitted from the definitive map in 1949 because the mapping was done in a great hurry. It is not about creating rights that have not previously existed; it is really important to recognise that.
I have form when it comes to public rights of way. For a decade, I chaired Suffolk County Council’s rights of way committee and have spent many happy hours looking at public map modifications and all the things that go along with that. These things are very time consuming, and there are a number of reasons why. One is the complexity of rights of way law. I do not think we are ever going to tackle that, because it would be really difficult to know where to begin; it has been built up over so many decades and centuries and it is a very complex area of law.
There is also the matter of the historical record and the time that needs to be spent going to the Public Record Office, looking at tithe maps and other documents and so on to get an understanding of whether something is or is not an historic public right of way. That is important because, in highway law, when something has once been a highway, it will always be a highway until there is a legal Act to stop it. There are some very
lengthy statutory processes. All these add up to a huge demand on local authorities, which have less capacity than they did back in my day. Finally, there is the capacity of the Secretary of State and the appeals process. All these mean that every claim takes a long time to process.
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The difficulty is that having a cut-off date beyond which these claims can no longer be made is going to do nothing to address any of those other issues which are causing the capacity problems. In fact, the Deregulation Act 2015 brought in some changes which might have made a difference, but eight years later we are still waiting for the statutory instruments which would bring those in. Not for the first time, I find myself mystified as to why we go to so much trouble to legislate only then to be so laggard in bringing forward the secondary legislation that is required. I say to the Government that there is a very real possibility that a cut-off date, whether it is 2025, 2031 or whenever, could make the situation worse.
From heartfelt experience, I can tell the noble Lord that these user groups are among the most tenacious and determined campaigners you will ever come across. They will do everything they can to make sure that the 41,000 miles that is currently unrecorded gets recorded. They will not be able to do all of it, that much is clear, so some could be lost for ever, but many will go forward as claimed. That means that the current backlog of local authorities will be massively increased. The certainty that I know the Government are seeking to achieve simply will not happen, because these claims are going to sit there for so long. We could have the worst of all worlds, where certainty is not achieved but other public rights of way are lost. That would be a very great pity.
When I first took over as chair in Suffolk, I remember reading a ruling by Lord Denning, in which he said,
“nothing excites an Englishman so much as a footpath”.
I have learned the truth of that, and I hope the noble Lord will recognise that this really could create a huge amount of trouble for everyone if they press ahead with a cut-off date.