Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

I beg to move amendment 48, in schedule 19, page 305, leave out lines 33 to 35.

We are making great progress but this is a really important issue. I hope to get reassurance from the Minister and for her to understand what we are trying to achieve. The amendment is designed to firm up the objection process in schedule 19 to ensure that the Secretary of State cannot overturn a recommendation of the independent appeal body except in very limited circumstances. Proposed new paragraph 16(3)(a), which  we seek to remove, states that the Secretary of State is bound to adhere to the recommendation of the independent appeal body on an objection unless that recommendation involves

“an assessment of the significance”

of a coastal access matter to someone with an interest in the land. That means that the Secretary of State can overturn the decision of the independent appeal body if the significance of the coastal access rights has been assessed. I would be interested to learn when such rights would not be assessed with regard to an objection. How could the appointed body make a recommendation about fair balance without considering the impact of the proposals on the landholder and the public? Indeed, the appeal body would be failing in its duty if it were not to consider the significance of matters to users and owners. It would, therefore, appear that sub-paragraph (3)(a) —introduced as an amendment on Third Reading in another place—provides a loophole, giving the Secretary of State the ability to overturn any decision made by the independent appeal body. I reiterate that we were glad to see the addition of the independent appeal process in another place. However, we are concerned that this sub-paragraph serves to dilute the authority of the independent body’s decisions.

When the appeal process was debated in another place and with industry bodies, it was repeatedly asserted that any objection or appeal process must meet the terms of article 6 of the European Convention on Human Rights and, in particular, provide an independent appeal process that had some validity and would not be overturned by the Secretary of State. If the Secretary of State is able to overturn almost any decision, it makes a mockery of the so-called independent appeal process. That is not what was intended by the noble Lords in another place, or the industry bodies that were extensively consulted. Paragraph 16(3) of schedule 19 specifies the circumstances in which the Secretary of State might reasonably go against the recommendation of the independent appeals body and includes the ability to overturn recommendations that are “perverse or irrational” or for which there is “insufficient evidence”. We have no problem with the Secretary of State exercising his powers in such circumstances. However, through amendment 48, we seek to remove sub-paragraph (3)(a), which effectively gives him the power to overturn any decision. It completely undermines the whole objection appeals process. Indeed, peers, in the other place, have expressed their concerns about whether the provision even complies with the European convention on human rights. In order to ensure that the objection process is enacted as originally intended, we seek the removal of this provision.

Hugo Swire (East Devon, Conservative)

The retention of sub-paragraph (3)(a) raises a question about why, if the Secretary of State has so little faith in an independent appeals body, he bothers to have one at all. If he wants to decide all these matters himself, why does he not just strike out the appeals body and make decisions himself based on each and every representation? It seems to be pretty straightforward. An independent appeals body, the decisions of which, in exceptional circumstances, the Secretary of State could overturn—but only with good reason—will give comfort to landowners and land users alike. That is  where the final decision in any arbitration should take place. In order to reassure all land users, the Minister should agree that our amendment is a positive step towards a solution.

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

This is an important debate and I would like to spend some time trying to answer concerns raised this afternoon and in another place. The objections mechanism set out in proposed new schedule 1A to the 1949 Act in schedule 19 to the Bill was of great concern to those in another place, many organisations and a number of committees. I appreciate the time and help that many gave to help us to introduce the process through which objections may be made. An objection can be made on the grounds that the proposals do not strike a fair balance within the meaning of clause 293, in so far as they relate to any of a list of particular matters, including the position of the route. The Secretary of State will make a determination, under section 52(1) of the 1949 Act and Natural England’s coastal access report, while having regard to any objections, Natural England’s comments, any representations forwarded to the appointed person and the recommendation of the appointed person.

Amendment 48 would delete paragraph 16(3)(a), which deals with a situation in which the appointed person considers a question of fact, and would change an amendment tabled by the Government in the Lords, the purpose of which was to ensure that if a report by an appointed person relating to an objection contained a statement of a finding or fact, the Secretary of State, in making the determination, would be bound by that finding, unless they were satisfied either that it was “perverse or irrational”—in one of the ways that a court might find an administrative decision perverse or irrational under judicial review before setting it aside—or else that it

“involves an assessment of the significance of a matter to any person with a relevant interest in land or to the public”.

Angela Watkinson (Whip, Whips; Upminster, Conservative)

I am not sure whether this is the correct time to raise this point, but I have received a letter from a constituent of mine who is also a naturist. Other Committee members might have received similar letters. My constituent was inquiring into their right to access beaches, the legal definition of the word “annoyance” and the question of alarm and distress. I apologise for springing this unexpected question on the Minister, but I would value her advice.

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

I am grateful to the hon. Lady for raising that question; I have to say that that issue does not often arise in Scotland because it is usually too cold and wet. In Scotland, breach of the peace legislation usually deals with alarm to the lieges and other things. I will write to her on that particular point because, as she will appreciate, I want to get clarity. English law on the matter is very different, as I observed when I was down in London for the trooping of the colour ceremony. I happened to be walking along Piccadilly in the afternoon wearing my nice smart dress when I observed the naked bike ride coming down the road. I have to say that it was quite a shock because we never see anything like that in Scotland. That shows that that the laws in England and Scotland on that question are materially different.

I return to the issue that we are trying to debate today about the significance to any person and why it is important that the Secretary of State has the discretion to review it, which, in answer to the hon. Member for East Devon, would occur only in exceptional circumstances. We do not want to reverse the decisions in every case, but there are differences. First, it would be difficult to reconcile the role of the Secretary of State in approving the proposals as a whole with the fact that, in relation to a particular part of the proposals, the appointed person would have already taken a decision that was binding on the Secretary of State.

Secondly, there is a significant risk to consistency of approach, both in relation to other parts of the proposals that are the subject of the same report and in relation to proposals in other reports that relate to other parts of the English coastal route. There might well be generic types of topography—headlands, for example—on which it may be anomalous and unfair not to adopt a broadly consistent approach in the absence of local circumstances justifying a difference. There are likely also to be other parts of the route where similar considerations arise but which have not been the subject of objections. The question would then arise of whether the decision of the appointed person in relation to an objection relating to one part of the route constrained the Secretary of State from achieving consistency between the approach to that part and to other parts where no objections had been raised.

Thirdly, it would be difficult to require the inspector to consider everything that the Secretary of State would take into account. For example, it would not be appropriate to require the inspector to consider representations relating to other parts of the route that were not subject to objections, but those representations might mention considerations relevant to maintaining a consistent approach to the route that was subject of the report as a whole.

Fourthly, given the structure in which the Secretary of State has power to propose modifications himself, as in the 1949 Act that provides for it, the appointed person cannot know what they might be in advance. Modifications proposed by the Secretary of State in relation to contiguous land might necessitate consequential changes to the modifications proposed by the inspector in relation to the land subject to the objection, if the continuity of the route is to be preserved without a mismatch. The Secretary of State might propose more extensive and radical modification proposals that make the appointed person’s decision on a particular spot no longer applicable. For example, in a case where the objection links to a part of a route that runs along an estuary or around a headland, the Secretary of State might decide that the route should not run up that section of estuary at all or should run across the neck of the headland. Where the proposed route crosses the neck of the headland, he might decide that the route should instead go around the periphery of the headland. Where the route crosses in front of a house, he might decide that it should skirt, not only behind that house, but also behind an area of land. In such cases the decision of the appointed person in relation to the spot subject to the objection might well be superseded by the more radical modifications proposed by the Secretary of State. Under those circumstances, it would be entirely inappropriate for the appointed person’s decision still to be binding on the Secretary of State if he is going to make a modification.

Proposed new schedule 1A, paragraph 16(3)(a) to the Parks and Access to the Countryside Act 1949 refers to a finding which

“involves an assessment of the significance of a matter to any person with a relevant interest in land or to the public”,

and is necessary to ensure that the Secretary of State is not precluded from reaching a view on the significance to the landowner or the public of, for example, the proposed position of the route. That clarifies that such an assessment is not to be treated as a finding of fact for the purpose of the schedule. So, for example, where the assessment relates to the significance of the position of the route, whether to the landowner or to the public, either assessment may be regarded as a mixture of fact and judgment or opinion. A judgment as to such significance in not separable in any sensible way from the judgment of the relative significance of the position of the route to the landowner and the public, which is at the heart of the assessment of whether a fair balance has been struck. It is quite different from ordinary questions of fact.

Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

Will the Minister clarify how the independent appeal process will work? Let us suppose that landowner A disagrees with the designation and takes the matter through the objections process as described in the document. To whom does he or she take it, and at what point does the Secretary of State get involved if they disagree with that decision?

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

The decision will normally be made by a planning inspectorate. It is an intermediate stage of considering representations, including representations of factual issues. That, together with the availability of a digital review, provides the normal decision-making process. As I said, there are circumstances where the Secretary of State might be required to intervene, particularly on the issue of consistency, or, for example, where they decide to modify a route. That would mean that some of the decisions taken would no longer be applicable or binding on the Secretary of State, as they might apply to a different piece of ground from the route that it was proposed to change.

The appointed person may have made an assessment of the underlying facts on which the assessment of significance is based. For instance, those could include the periods during which the landowner uses his land for a particular purpose—I will come on to the different circumstances to which that may apply—the extent of the land subject to that use for those periods, or the effect on the landowner’s ability to use his land for that purpose. The Secretary of State would be bound by the findings of the appointed persons in any of those things, unless the finding was irrational and could be set aside by the court on judicial review. We do not consider it appropriate that the Secretary of State’s discretion in the essential question on which they are required to decide—that of where fair balance lies—should be constrained so as to make them bound by the decision of the appointed person.

Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

Does the Minister understand my concern that that would allow a hypothetically weak Secretary of State at some point in future to apply the vested  interests of those who have badgered him in the golf club about a particular issue? [Interruption.] I am not talking about the present Secretary of State, who I am sure would not behave like that. However, he could effectively cast aside all the evidence put to an independent, quasi-judicial process, and overrule it. I entirely understand the point about the Secretary of State, but the issue that the Minister raises is a red herring. I accept that where the decision is perverse or made on the basis of false evidence, it should be overruled. Nevertheless, this has to be an independent process.

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

Any decision that is made by the Secretary of State, an elected representative, has to be accountable. That elected representative in turn has to be accountable to Parliament. The issue of precedent will have to be considered by any Secretary of State when they come to make that decision. It is not a free-for-all made in the back room of the golf club—far from it. It is based on an administrative decision, and there are precedents that any Secretary of State, either now or in future, would be required to consider.

Hugo Swire (East Devon, Conservative)

What about Secretaries of State who have not been democratically elected to anything by anyone?

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

That would refer to something in the future, and I cannot account for who would make that decision. Elected representatives are accountable to the House, whose proceedings in turn are transparent and on the record. Every Minister is subject to oral and written questions in the House and the other place.

I want to clarify the various stages of the procedure, because it is important to realise that it is a four-step procedure. An objection is made and the information is passed to the appointed person—the nominated person under the planning inspectorate. The appointed person then gathers and weighs up the evidence. They make a recommendation to the Secretary of State, who makes the decision and who must—I reiterate must—take account of the recommendations of the appointed person, so it is not a decision in which he has complete freedom. He must consider the facts of the case and the recommendations made by the appointed person.

I also want to clarify the issue of the Bill’s compatibility with the ECHR, which was raised by the hon. Member for Newbury. The Bill has been fully compatible with the ECHR throughout its passage in the House and the other place. As I said, we had a useful and fruitful discussion regarding the issue of putting in place an intermediate process and that is why the clause has been put in the Bill. That is welcome. It shows that we want to ensure that the ability to address concerns is fully represented in the Bill. On that basis, I urge the hon. Gentleman to withdraw his amendment.

Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

Before I address those concerns, it is right to pause to consider the important intervention made by my hon. Friend the Member for Upminster on behalf of naturists. Like many members of the Committee, I received an impassioned plea from naturists. They should be considered as interested parties by the Minister  and, where possible, she should go to see the problem at first hand to hear their concerns in attire that they would find suitable.

The Minister mentioned the naked cyclists in London. I was appalled at the heavy-handed treatment by the Scottish police of the naked walker who walked from Land’s End to John O’Groats some years ago. I think he deserved some sort of medal for walking in the Scottish climate.

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

That is a matter for the minority SNP-led Government.

Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

Returning to clothed matters and a very important point, I do not believe that the Minister can go round claiming that the Government have listened and yielded an independent right of appeal if they have the right to overrule a decision in every circumstance. I hear what the Minister says about the safeguards that have been put in the Bill, but to introduce this amendment on Third Reading in another place in a way that would allow a Secretary of State to overrule decisions reached in a quasi-judicial process is fundamentally wrong.

I will not press the issue at this point, because I want to reserve the right to return to it on Report. I am doing so because the important concerns raised by the pointy heads in another place who understand the ECHR much better than I do are in direct conflict with the assertions made by the Minister. I want to ensure that we are compliant with the ECHR legislation, so we need to revisit the matter on Report.

Ann McKechin (Parliamentary Under-Secretary, Scotland Office; Glasgow North, Labour)

I have had some inspiration on the issue of naturists, and I can clarify that we have had meetings with naturists to discuss their concerns. Natural England has also written to address their concerns. I just want to put that on the record.

Richard Benyon (Shadow Minister, Environment, Food & Rural Affairs; Newbury, Conservative)

I hope the Committee will spare my blushes on that one, and I thank the Minister for her intervention. On the basis that we will return to the matter at some later stage in the proceedings, I beg leave to withdraw the amendment.