Ros in the Lords: Historic Rights of Way

Yesterday saw a Grand Committee debate on historic rights of way, linked to the Countryside and Rights of Way Act 2000. It would be fair to say that the commitments therein to recording all existing rights of way is unpopular with the Minister...

Baroness Scott of Needham Market

I would like to thank my noble friend Lord Greaves for securing today’s debate, for setting out the issues so clearly, and for his tireless advocacy of public access and rights of way.

Between 1993 and 2005, I was a county councillor in Suffolk and, for most of that time, I chaired the public rights of way committee, so I have got quite some form in this area. I remember reading a summing up by Lord Denning in which he said that nothing excites an Englishman so much as a footpath - I have always thought that said a lot about English men.

The cut-off date for claiming these historic rights of way might have seemed a good way off at the time the legislation went through, but it is now coming in near horizon. There are two points I wish to make. The first concerns the reliance on the voluntary sector to make sure that the claims are made before the cut-off date. Groups such as the Ramblers do, and always have done, an amazing job, but they are volunteers, with all the limitations of time, money and expertise that that entails. There is a very strong reliance on local groups. Admittedly, they all know their own areas very well but, like all voluntary groups, their capacity will ebb and flow over time, with more or fewer members and so on. I just do not think it is right that the capacity of the volunteers should determine whether an ancient right of way is extinguished - that just does not feel right to me.

My second concern is around the capacity of local government to deliver within this timeframe. It is well known that council finances are now at breaking point. The legal teams that have to deal with public rights of way claims are now often part of more generalist teams, and they have to compete with areas such as child protection, which - absolutely naturally - take priority. As we have heard, the current caseload is around 4,500. I suspect that, by 2026, the backlog will be so enormous that it will pretty much negate the whole idea of providing certainty for landowners - this will just drag on for decades. Therefore, there should be common cause rather than pitting one side against the other.

I have a final point to make on local authority budgets. The evidence base for historic rights of way is often found within documents such as tithe maps, enclosure awards and so on, many of which are held in local archives. Local archives themselves are coming under enormous pressure as council budgets are squeezed. I am a board member of the National Archives and we have oversight of all this. In some councils, the situation is very serious. One contingency that many are looking at is a significant reduction in the opening hours of local archives, which would make it even more difficult for local voluntary groups to gather the evidence that they need. 

Under the existing legislation, the Secretary of State can extend the cut-off date by five years, and that leeway was put into statute with a purpose. I believe that, with the points that have been made, and to which I have added - the situation in local government, the absence of the secondary legislation and the collapse of the Discovering Lost Ways project - a very good case has been made for delay and, preferably, an entire review.