Schedule 19
Marine and Coastal Access Bill [Lords]
1:45 pm
Ann McKechin (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.