In moving Amendment No. 14, I shall speak also to Amendments Nos. 20, 29 and 32 tabled in my name.
Amendment No. 14 inserts on page 2, line 1:
"unless a contrary intention appears", which is self-explanatory.
Amendment No. 20 inserts at page 2, line 12:
"'Inner London' means the area comprising the Inner London boroughs" and so on and so forth. We have tabled the amendments to ask the Government for clarification. Linked in the same group is Amendment No. 29 which inserts at page 2, line 18:
"'owner' in relation to any land means ... any person, other than a mortgagee not in possession, who, whether in his own right or as trustee for another person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let".
Amendment No. 32 inserts at page 2, line 21:
These amendments are important. They are to consolidate into one clause the definitions which apply in Part I. At present they are contained in Clause 1 and in Clause 41 at page 23. Seven of the 15 definitions in Clause 41 refer back to Clause 1. Clause 41 also contains important definitions of the owner, interest and status of the Norfolk and Suffolk Broads. It seems to us to be better to put such definitions into one place in the Bill.
Subsection 2A leaves out a reference to Section 2(5) in the original provision of Clause 41(2). That relates to Amendment No. 85 which deletes the narrow definition of "owner" as "tenant farmer" in Clause 2(5). I beg to move.
I wonder whether it would be appropriate for me to try to establish from the Minister the exact meaning of the term "owner" in the Bill. On any land which is likely to be access land, it is not clear to me whether it is the tenant or the owner of the land who has the responsibility for exercising the options under Schedule 2 and Chapter II.
Perhaps I may give an example. I refer to allotment land or new take land, which is a term used in Devon. I presume that if anything untoward occurred, it would be the tenant who would exercise powers under Schedule 2 and Chapter II. In that case, requesting the offender to leave the land would, as I understand it, apply only to the land in the ownership of that tenant or, indeed, of an owner occupier. However, presumably if the tenant rented additional land, such land would also be included as part of the excluded land.
But if the offence of trespass took place on the open hill and the tenant had only the grazing rights, albeit as part of the tenancy of the in-bye land, I assume that the owner of the land or his employee would exercise the sanctions against the trespasser. I assume that on the grounds that the grazer does not have what is known in agricultural terms as exclusive possession.
That being the case, presumably the person in breach of the regulations would be excluded from entering all open land owned by the same person. However, I wonder whether that would include land owned by the same individual but subject to a tenancy? Further to that is the question of common land where I assume the right to operate such sanctions would rest with the owner and would therefore include any other common land that he owned within the access area. I also wonder whether a commoner, somebody who has the rights to graze on that land, who found somebody contravening either Schedule 2 or Chapter II, would have the right to ask that person to leave the common, or would he have to ask the owner to exercise the exclusion?
As the Bill stands, it is unclear as to who exercises such rights. The idea of trying to explain to a trespasser which land he is precluded from will be an additional problem which again we need to consider carefully. I know that we are not dealing with it now, but I suspect that it will be much easier to make it obligatory under the Bill to include all access land as covered under Amendment No. 91. We will no doubt deal with that when we come to it. However, it would be immensely helpful if the Minister could explain to the House who is responsible for dealing with somebody who transgresses these offences and becomes a trespasser.
I hope that the noble Baroness, Lady Byford, will forgive me for saying that there are two kinds of amendments in this group. One kind is technical and, as the noble Earl, Lord Peel, has made clear, one is important. The technical amendments concern where the different definitions should appear in the Bill. The amendments provide that many more of the definitions which are otherwise found in Clause 41 are brought forward into Clause 1. The reason for that is simple. It has been followed in the drafting of legislation for many years. Unless there is to be a whole definition section in a Bill, which may be necessary but does not appear to be here, they appear where they are needed. In other words, where the definitions are needed for Clause 1 of the Bill, they are included in Clause 1 to make it easier to understand that clause; where they are needed in the course of Part I, they are included at the appropriate point; where it is only a matter of clarification at the end, they are included in Clause 41 at the end of Part I. That is simply a drafting issue.
But Amendments Nos. 29 and 32 are much more significant, as the noble Earl, Lord Peel, recognised. They would provide that a person who breaches a restriction on access land and is rendered a trespasser, would lose the right of access to all land in the ownership of the person entitled to the rack-rent of the land; that is usually the freeholder.
The definition being asked for by the noble Earl, Lord Peel, appears in Clause 2(5), which provides that,
"'owner', in relation to any land which is subject to a farm business tenancy within the meaning of the Agricultural Tenancies Act 1995 or a tenancy to which the Agricultural Holdings Act 1986 applies, means the tenant under that tenancy, and 'ownership' shall be construed accordingly".
That is the formal answer to the question of the noble Earl.
However, the noble Earl, Lord Peel, asked more on that point. He wanted to know what is the effect of that definition. It is legally correct but I agree that it is not explicit. Where a person is subject to a farm business tenancy, then it is true that the statutory right of access is lost for the whole of that land. Where the land is not subject to a farm business tenancy, then the statutory right of access is lost to the whole of the land belonging to the freehold owner.
The noble Earl suggests that it is more complicated for a trespasser--I am glad to see his concerns for the problems of the trespasser--to know whether any other land is likely to be owned in the sense of Clause 2(5); in other words, in the possession of the tenant or the owner in the terms in which the Act is drafted. It may be difficult, but it is nothing like as difficult as expecting the trespasser to know what other land is in the possession of the freehold owner, which is what Amendments Nos. 29 and 32 provide. I agree that in the less common cases, where a tenant has dispersed land with gaps in between, there could be a problem for the trespasser in knowing whether he is excluded from other land which is not contiguous. But it is much less of a problem than would be created by the amendments before us.
The noble Earl, Lord Peel, also asked whether a commoner can ask a person in breach to leave the land. Let me make it clear that the definition of "owner" has no effect on who may require a trespasser to leave the land. That is a matter of private law. It depends on the specific arrangement made between the landowner, his tenant and any others with rights over the land, such as sporting tenants. The Bill does not take away any rights which those people may have to exclude trespassers; it merely demarcates the area of land to which a trespasser may not return.
Generally, commoners will not have any right to require trespassers to leave the common, whether under the present law or under the Bill. But a commoner may be authorised by a landowner to act as his agent in that regard. In those circumstances he would have the right to require a trespasser to leave the land.
I am grateful to the noble Lord for giving way. Perhaps he will clarify that point again for me, because he was going quite fast.
As I understood him, he said that it was a matter of private law as to who could ask a trespasser to leave. Can he take that a stage further? Does he mean that only one person or only one party can ask a trespasser to leave? If a freeholder has a farm tenant over whose land a third party has sporting rights and over which another party has an interest, can only one out of the four ask a trespasser to leave or can all four separate parties ask a trespasser to leave?
My first and most important answer is that there is no change proposed in the present law. If there are circumstances under the present law where more than one person can ask a trespasser to leave, that will be continued under the Bill as it stands. I do not know whether more than one can make that demand, but I imagine that, bearing in mind the vast complexity of private law, there must be circumstances in which more than one of the four could ask a trespasser to leave. That will continue to be the case. It is not an issue in this Bill.
It may not be an issue in the Bill, but it is an important point that it would be helpful to have clarified at this stage. Perhaps if the fifth cavalry can come to the Minister's assistance in due course, the Minister will inform the Committee what the present law is.
The answer is that, where there is an owner and a tenant and, for example, a sporting tenant, there are in existence cases where more than one person can ask a trespasser to leave and that will continue. We do not believe, where there is a tenancy, it is necessary to exclude a trespasser from all the land owned by the freeholder. That could be extremely large, perhaps extending to thousands of hectares in different parts of the country--I do not look at any Members opposite when I say that. More importantly, such a provision would be difficult to enforce. How would a farm tenant know that a person had broken a restriction on a neighbouring tenant's land, or even the land of the neighbour's neighbour? We will of course return to this matter when we come to debate Clause 2. But our view is that this amendment would not be practical and it is not desirable.
I do not know whether I am the cavalry; I doubt it. But I hope I do not make the situation more complicated. Clause 21 tells us who is an entitled person in connection with Section 2. An "entitled person" is,
"the owner of the land, and any other person having an [defined] interest in the land and falling within a prescribed description".
I am sure that the Secretary of State has views as to what descriptions of people will be described within Clause 21(3)(b). Perhaps the Minister could tell us. It would help in taking forward the debate to know whether there is any widening under that. Subject to that, Clause 21(3) supports the common-sense view that the noble Lord, Lord McIntosh, explained.
I am sure that is right. But the use of the word "prescribed" is always a get-out for government in legislation. We use the word when we propose to prescribe provisions in secondary legislation.
I thank the Minister for his response and for the clarification. He said that a trespasser may not know from which land he is excluded and it could be that the owner or tenant has other land. That is a problem to which we will return as discussions go forward. I do not see how any trespasser will know whose land he is on in any case. That is a problem with the Bill and not simply with the specifics raised by my noble friend. We certainly need clarification of owners' and the Government's view on that and I thank the Minister for that response. With those comments I beg leave to withdraw the amendment.
Amendment No. 15 returns to the theme of improving the management of access. It refers to "designated access point"; that is,
"a location of access to access land shown in conclusive form issued by the appropriate countryside body for the purposes of this Part.
As the Bill stands, persons are allowed to enter access land at any point; for example, they are allowed to climb a wall or fence even if there is a gate 50 metres away. Access, in our view, should be made at specific points. That has many advantages in managing access and in helping people to enjoy it and be responsible users of the countryside. Perhaps I may list some of the points of support. Responsible walkers will want easy and convenient access by gate or stile. Convenient access points will be shown on access maps. The Bill allows entry on to access land at any point. If the land is open to a road, few problems will be caused. If the land is enclosed, difficulties will ensue. Climbing walls or fences is liable to cause injury and damage. The amendments protect dry stone walls. Open boundaries to access land increase difficulties in signing bylaws, exclusions and advice about land. Designated access points can be signed and notification of extra rights, exclusions and restrictions can be given with a sensible number of notices. In other words, anyone wondering what is happening on a particular piece of land will go to a known access point--it will be known because it will be marked on the map--and will know what is happening on that piece of access land.
Furthermore, better information can be provided for walkers about how the land can be maintained, its special features, any SSSIs, the wildlife, the expected behaviour and the enjoyment they can derive. It prevents the need for large numbers of signs in the open country showing that land is or is not access land.
"one must take account of accessibility, which might require a further delay, depending on the circumstances".--[Official Report, Commons, 23/3/00; col. 725.]
These amendments take account of accessibility. Mr Meacher also said that special protection for dry stone walls could be considered in Committee, adding:
"I accept that the landscape of many areas would be greatly improved if dry stone walls were restored".--[Official Report, Commons, 23/3/00; col. 722.]
I can give Members of the Committee a wonderful example of that in my own province in the Mourne mountains. For several years, there has been a great scheme for restoring dry stone walling and the countryside is wonderful. I see the noble Lord, Lord Dubs, nodding. When Mr Meacher said that he would not devote any more of his speech to dry stone walls honourable Members asked, "Why not?".
Mr Mullin conceded:
"The idea of designated access points is a good one",--[Official Report, Commons, Standing Committee B, 30/3/00; col. 66.]
but he did not accept that such access should be mandatory. We suggest that the designation of access points in many areas of what will become access land would be a wise and sensible amendment to make to the Bill. It would allow for easier communication with the general public and will allow them to know where they are starting from and the state of the country as regards safety and so forth. Furthermore, it is hoped that educational material will be passed to the general public in a tasteful and sensible way. I beg to move.
Once again, we are curiously served by the grouping because, far from having too many issues grouped together, we have too few. We have the definition of a designated access point but no indication of what one is to do with it when one has found it. It becomes relevant only when one turns to Amendment No. 72, which provides that people shall enter only by means of designated access points.
If the Minister wants to tell me that he would rather deal with the matter when we reach Amendment No. 72, I shall immediately stop. Is he saying that or is he agreeing that I should stop on principle?
Possibly both, but it is true that the amendment does not involve the mandatory nature of designated sites. That will arise with Amendment No. 72. If the noble Viscount is about to talk about mandatory issues, that would be more appropriate when we reach Amendment No. 72.
I agree with my noble friend that we are in a dilemma because the single amendment with which we are dealing relates to a definition. However, we do not know what will be done with the designated access points at a later stage. It is a paving amendment but there seems to be no pavement after it.
The amendments with which we shall deal later are different because Amendment No. 70 proposes that people should inform themselves at the designated access points. I believe that that is an excellent idea. Amendment No. 72 proposes that they should enter by such points. Therefore, we are now paving the way for different amendments.
Amendment No. 15 provides a definition and as this is the first time we have dealt with the issue of designated access points, I intervene, first, because I believe it is important and, secondly, in a spirit of jubilation because we have reached page 2 of the Bill. But that is en passant.
The given definition must be right and I believe that the proposed definition is good. It provides that the designated access points must be issued in a conclusive form, so there will no great argument about whether they will be here, there or anywhere else. That is important in particular for walkers. They need to know and will go to such points to seek out information which they might gain under the provisions of Clause 19. Furthermore, the amendment allocates the responsibility to the appropriate countryside body, which also seems correct.
Therefore, following the grouping, which in this case contains only one amendment, I support it because I believe that it is a good one.
Perhaps I may ask the Minister a question before he replies. I apologise if the point has already been touched on. Does he agree that where access land is surrounded on all sides by non-access land there must be some kind of footpath or other right-of-way agreement in order to make the access land accessible by the general public?
Although we specifically debated this matter before dinner, we partly dealt with it previously. The noble Earl, Lord Peel, was not totally convinced by my reply and I suspect that we shall return to the matter at a later stage. Clearly, a good deal of land will be contiguous and have some form of access to it. In other respects the right of access may need to be addressed, but the principle of the right of access for designated land is not altered by the fact that there is a surrounding area of land to which no access rights apply. There may be ways around that through the process of negotiation before the final position is established. In the particular context of fast-track land, I do not believe that this issue will arise very frequently. However, the noble Lord has just raised a more general issue to which we shall no doubt return.
As to the amendment itself, we are all agreed that it would be useful for the countryside agencies to identify the best point of access and provide information, education and so forth at that point. Therefore, we are all in favour of designated access points. I am also in favour of the countryside agencies having responsibility for identifying those designated access points in consultation with others. The question of making them mandatory will be addressed later. Therefore, we have no problem with the amendment in principle: we want the countryside agencies to identify designated access points.
The difficulty is: on what maps should they be identified? The role of statutory maps for the conclusive definition, as the amendment implies, is to show what is mountain, moor, heath and down registered common land. That is the sole, essential purpose of the statutory maps. However, those maps are unlikely to be the ones that the average hiker carries in his rucksack. Walkers tend to use maps and guides which are produced by commercial organisations, their own associations and so forth, which show the area of local countryside. I expect those kinds of user-friendly maps to show the main access, information points, markings and so forth so that access to that land is dealt with in as detailed a way as possible. It is important that the access points are marked on that kind of map rather than on something that sits in the local library and which is the statutory map that designates the land as such.
There is nothing to prevent the countryside agencies indicating the location of access or information at the same time as they produce the statutory maps. That is what the countryside agencies propose to do. There is a difference between the statutory map and the guidance map which indicates preferred or designated access areas. Although I understand the intention of the amendment as it stands and agree with it--I do not necessarily agree with some of the consequences to which it paves--to identify that as being on the statutory map itself is the wrong approach.
I thank the Minister for his agreement. If it is on the statutory map I believe that it will end up on all others. Those who produce the user map (for want of a better word) will get their legal base right from the statutory map. I hope that in due course they will appear on statutory maps.
Perhaps at this stage I may voice a complaint. Tonight I have moved three groups of amendments. The problems with all of them have been appalling. It was extremely difficult to move the first group of amendments, which made no sense. As to the second group, Amendment No. 33 should not have been there and has not been moved. I totally agree with the noble Viscount, Lord Bledisloe, that Amendment No. 15 standing on its own is silly. Considering that those who arrange these groupings have had the whole of the Summer Recess in which to deal with it, the list indicates that they do not understand the Bill. I hope that any further groupings of amendments will be significantly more realistic than those with which we are trying to work.
I believe that the normal procedure, which has been followed, is that a proposed list of groupings is provided. It is then up to those who have tabled amendments to deal with it. If a problem has arisen and that list has not been available I apologise. I can only believe that it happened because the House did not sit until today.
I was not consulted either. I expressed my view privately earlier. I assumed that this arose because it was the first day of the sitting. We have found the list unhelpful, particularly in relation to our amendment about firearms and night access. Some of the other groupings have not been helpful. I am sure that in future we shall be consulted.
From these Benches perhaps I may clarify the position for the benefit of the Minister who has just intervened. The draft list was made available and it was really up to us to go through it and ensure that the amendments were grouped as we believed they should be. The problem in sorting this out is perhaps in part attributable to the fact that we have literally returned today. It will not happen in future. I do not want the Government Bench to understand that the groupings have not been made available to us; they have.
In moving this amendment, I wish to speak also to Amendment No. 102. The purpose of these two amendments is to put local access forums on the face of the Bill. The first amendment establishes a definition for them; the second amendment provides a mechanism by which they can be set up. The theme running through the Bill is that local people will be consulted. That is a wide definition of people. It will include not only landowners and users but also--unlike the amendments grouped with it, to which I am sure those who put them down will speak--climbers, wild life group interests where they have no de facto rights, riders with horses and so on. We would like to keep the definition of "local access forum" as wide as is suitable locally.
There is a definite need to set up these forums. I think that that has always been agreed by the Government, because when they published their proposals for improving access to the countryside in March 1999 they recognised that local access forums would play a key role. There has been no disagreement between these Benches and the Government on the importance of the role the forums would have to play. The difference has been that the Government have been hoping that the forums would be able to be non-statutory bodies. Of course at the back of that issue is the resources which would be made available to them because the Countryside Agency, when discussing its role in producing draft guidance, stated:
"The cost of setting up and running local countryside access forums will fall to the local and national park authorities responsible for them".
Further on in the same paper it said:
"The Agency will not be able to contribute to the development of local countryside access forums if additional funding is not provided by the Government".
As the Minister indicated earlier, the Government are beginning to think that these forums should be on the face of the Bill. I hope that that recognition will be reflected in providing the funding for them. The time and effort of setting them up will--and rightly should--fall on local authorities. They will be desperately needed if the Countryside Agency is not to be judge and jury at the same time on a number of issues, from the very initial stage of producing the draft map right through to how this will work in practice.
In its briefing of 4th September 2000 the Countryside Agency said:
"There is an opportunity for local forums to be used as part of local government's long term arrangements for liaison and consultation with local interests on the provision and mmanagement of recreation and access".
That is a very important point. They must be much wider than simply being a mechanism by which the legislation can be put in place. But that of course would be their first and very crucial role. These local forums need to be established rapidly if they are to play a useful role because of the speed with which the mapping will need to be started, a point touched on by the Minister and other noble Lords earlier this evening.
In the Commons Committee debate on 4th April, Mr Mullin said:
"In some cases, it might not even be necessary to have a forum"-- but I think that generally it is accepted that those moments have passed. He continued,
"but many areas will urgently require such a body".
When my friend David Heath pressed the point as to who would establish the local access forums Mr Mullin said:
"it is for the Countryside Agency to insist on the establishment of such bodies where they are thought to be desirable".--[Official Report, Commons Standing Committee B, 4/4/2000; col. 97.]
However, without the mechanism in the Bill I think it would be very difficult for the Countryside Agency to insist that they should be established, especially where there are no resources to do so.
Contrary to the fears that may have been around initially that the access forums may be a mechanism by which the whole process would be slowed down, I think that they will play a key role in making the process workable and streamlining it locally. Clearly, if interests groups began to use them for those purposes that would be quite wrong. It is for those reasons that I have drafted all our amendments very carefully so that the access forums should be consulted. There is a duty on the agency to consult the access forums but there is not in my amendments a mechanism by which the access forums can bring the whole process to a grinding halt. I think that is right. I hope that the Minister will be able to elaborate on what he said earlier in terms of feeling that they are a very good idea now. I beg to move.
Without pre-empting any subsequent debate, it may be helpful if I indicate and confirm that we have now considered whether local access fora should be put on a statutory basis. We now accept what the noble Baroness has said, that without specific reference in the Bill to the fora, there would be concern that due weight would not be accorded to their views. We therefore intend to bring forward at Report stage substantive amendments in this area. That will give the local access fora rights on advising on the new rights of access and indeed on recreational issues more generally, as the noble Baroness wishes. I thought it would be useful for me to say that.
I thank my noble friend for that most helpful and welcome contribution. Perhaps I may press him on one or two points of detail relating to the amendments. As I see it, there is a weakness in the two amendments proposed by the Liberal Democrats in that they would have the composition of the forum restricted to the owner or farmer on the one hand and the rambler or user on the other. I prefer, but with qualification, the amendment tabled by the Conservative Benches which refers to the parish councils. A good parish council, which might have a deep interest in the matter, especially in common land within its parish, would be incensed if a body under the auspices of government ignored it. While my noble friend should take note of the parish council suggestion, he should also consider the fact that, while one would have on the forum the user or walker and the farmer or landowner, with or without the parish council, there would be no one with any ecological knowledge of the area in question. There should be an ability to appoint to such a forum someone with a detailed knowledge of the fauna and flora. I trust that the point about the parish council will be borne in mind. I say that as vice-president of the Yorkshire Local Councillors Association and also because I believe that we ought to try to promote a decent relationship between the bodies that might be in conflict. A third voice knowledgeable on conservation matters could make a helpful and perhaps a healing contribution.
I am sorry that the noble Lord, Lord Hardy, read my amendment in that way. Perhaps I may clarify the point. Amendment No. 102 states that a local access forum,
"shall include persons whom the access authority considers able to represent the interests of owners and occupiers of access land ... and of those who may wish to exercise the right of access over it".
That would certainly encompass parish councils. It could encompass anyone else with a particular interest. It would vary from areas with crags where climbers might be involved to those with people on horseback who had de facto rights. Under subsection (3) of Amendment No. 102, there is provision for the Secretary of State to make regulations regarding the composition and operation of local access fora. That is a safeguard to ensure that they do not become exclusive.
When the noble Lord, Lord Whitty, brings forward his amendments, will he undertake to follow the civilising example of the Liberal Democrat Benches and recognise that the plural of "forum" is "fora" and not fall into the appalling solecism perpetrated by the noble Earl, Lord Caithness, of describing them as "forums"?
I wish to speak briefly to the amendment. In principle I have no difficulty with access fora, although if they are to work effectively it is essential that they represent all interested groups fairly. As the noble Lord, Lord Hardy of Wath, pointed out, it would be essential for there to be proper parish representation.
I have no difficulty with the principle that lies behind the amendment, but I hope that the provisions will not be used to bog down procedures. If every detail is referred back to the fora, we are in danger of seeing the working relationship between the landowner or the tenant and the access authority--that is the crucial relationship here--being harmed. That relationship must work effectively and efficiently so that people have confidence in it. When closure orders or by-laws are considered, I hope that, as far as possible, they will be provided for on a national basis so that we avoid the danger of introducing too many procedures, which will only confuse everyone. Indeed, more than anyone else the walker will encounter difficulties.
I urge the Minister to accept the principle that as few local restrictions as possible should be imposed and that as many national understandings as possible should be put in place. That will streamline the provisions of the Bill so that they can properly be understood by everyone. I stress that I am not against the principle of local groups, but I hope that they will not be used merely as an excuse to bog down and delay procedures. In many circumstances, the speed at which such matters are settled will be essential to the proper management of the land.
Perhaps I may bring one further point to the Minister's attention. I understand that some of the park authorities which act as access authorities intend, subject to the will of their respective local authorities, to act on behalf of such neighbouring local authorities, which may well comprise borough councils and so forth. For that reason, when we discuss favourably the role of parish councils, can I ask the Minister not to exclude the possibility of representation by borough councils working with access authorities which may in fact be establishing such fora?
I believe that one of the few mechanisms that will enable the Bill to work effectively will be to establish such fora. However, as my noble friend Lord Peel has just pointed out, difficulties and problems may be encountered with such groups. We need to consider the size of the fora and the commitment that will be required of the members. Farmers and landowners are extremely stretched. They will need to give up even more of their precious time to serve on the fora. Unless farmers, owner-occupiers and tenants make available that time, the fora will not be able to undertake their tasks effectively. The groups cannot become talking shops; they must evolve as positive institutions working within a national framework. We shall discuss specific amendments addressing such a framework in due course.
I point out only that the more that can be agreed nationally, the easier it will be for the fora to work properly and effectively and, indeed, the easier it will be for those who wish to utilise the benefits conferred by the Bill.
I hope that the Minister will now be in a position to give the Committee further details on how funding will be made available for the new fora, how he sees them working and, lastly, on their size. Perhaps it would be helpful if the noble Lord were to agree to meet between now and the next stage of the Bill those noble Lords who have expressed an interest in this matter. Thus when we reach the Report stage and are more limited in the time available to discuss the matter, we shall at least have had an opportunity to meet him and to express our views. His officials will then be able to take them into account when drafting the government amendments.
I urge the Minister to pay no attention to the suggestion of the noble Viscount, Lord Bledisloe. We are not talking about market places in the middle of Roman towns; we are talking about the English word "forum", the plural of which is "forums". The noble Earl, Lord Caithness, quite rightly used that word. I hope that he will continue to use it in spite of the fact that he seemed to be giving way to some rather intellectual blackmail which was of no interest.
I stand shoulder to shoulder with the noble Earl and the noble Lord, Lord Beaumont, in believing that the English word is "forums", despite the fact that the amendment states otherwise. I noticed that my noble friend Lady Miller said "forums" five times and "fora" three times; the Minister said "fora" twice and "forums" once. Whatever we do, let us stick on one and decide what we will call them. In my part of Lancashire, folk stopped talking Latin quite a long time ago.
On behalf of these Benches I thank the Minister for what he said about local access forums. We look forward to seeing the form of wording he comes back with. There are a number of reasons why we believe it is important that local access forums should be statutory bodies written into the Bill. First, it gives people an assurance and a guarantee that they will exist. Without it, some local access authorities may well, at the very least, drag their feet and perhaps set them up in a half-hearted way and not treat them seriously.
Secondly, it will allow reference to them in other parts of the Bill. We have put down amendments on that basis. It also means that in terms of regulation and secondary legislation--although it is not necessary to name them in the Bill for that purpose--it makes the whole issue clearer.
We want to see the forums playing an active role throughout the whole process. For example, if at the mapping stage draft maps are produced by the Countryside Agency--even though there might have been consultation locally with land owners--and it lands those draft maps on people who have not seen them before that stage, it would be likely to lead to immediate reactions and conflict. On the other hand, if local access forums are involved at a very early stage in the consultation process when the Countryside Agency is carrying out the initial mapping, it is far more likely that the result of the initial mapping will, at the very least, be something which will lead to consensus locally.
Later in the Bill we shall be talking about public rights of way plans and improvement plans. The access forums have a crucial role to play because there is a great feeling among many people--especially people associated with bridleways, for example--that Part II of the Bill will not lead to an improvement of the rights of way network but to a worsening of it, because of the capping and so on, and to a failure to carry out the work within 25 years, which they see as likely. Local access forums playing an active role will be a bulwark, a guarantee, a means of providing the initiative and motivation to get on with not only getting the definitive map, the historic record, right, but also getting the improvements in the rights of way network which are so desperately needed in many areas.
We believe that these forums are a key part of what is being proposed. That is why it is important that they are incorporated in the Bill. It is a guarantee that they will not be a seven-day wonder but will be here next year, in 10 years' time, in 25 years' time.
It is interesting that support for the idea of local forums comes from right across the spectrum. The Countryside Alliance has sent us a briefing urging us to set up local access forums. If I am on the same side as the Countryside Alliance either something dreadfully wrong is going on or we are right.
I should like to speak to the amendment moved by the noble Baroness, Lady Miller of Chilthorne Domer, and also to my amendment in this grouping. I thank the Minister for indicating that the Government will return with some amendments that will enable the access forums to be established.
The reason that my amendment included parish councils in an area of access land--and I thank the noble Lord, Lord Hardy of Wath--is that in the past one has often found that the consultation takes places at either county or district level and that it does not go down to parish level. Often, some of the problems that will occur are on the ground at parish level. It was not meant to exclude others but we wanted particularly to have them included.
Perhaps I may refer what was said by Mr Mullin when the matter was debated in the Commons on 20th March. It is important that I raise it. He said:
"Let me stress the importance of local access forums"-- which he clearly recognised. But he went on to say:
"It is important not to push such matters through in the teeth of local opposition, but to ensure that all local interests are properly represented".--[Official Report, 20/3/00, Commons; col. 814.]
In responding to this group of amendments, perhaps the noble Lord, Lord Whitty, will clarify the difference now that there will be a provision on the face of the Bill in spite of possible opposition locally. I am not sure how the Government see themselves as squaring that. On these Benches, we welcome and support the setting up of local access forums, or "fora"--I do not quite know which one to say.
I should like to highlight the problem that has been raised by other Members of the Committee on the question of funding, on which I suspect the Minister will respond. Perhaps I may comment also on the size of these groups. One point that has emerged from the discussions that I have had with various groups is that if we are not careful we may see yet more layers of bureaucracy, which would take more time and delay the very process that we are trying to achieve. Although I know that the Minister will return with a specific proposal at Report stage, it would be helpful if he would respond to one or two of the queries that have been raised at this stage. If he cannot, perhaps he will take away our comments for specific consideration.
Finally, I highlight this whole issue. We on these Benches would be more reassured if we had some basic national formula or view on the local access forums. I accept that there will be flexibilty; that is inevitable, depending on the kind of area that they will cover and cope with. But it would be helpful to have a basic framework on which to build. If the Minister will answer those comments I shall be grateful.
I am grateful for all contributions. I believe that, broadly speaking, we are all moving in the same direction. I shall have to consider many of the points that were made and take them back to my colleagues before we come up with the final proposals.
As the noble Lord, Lord Greaves, indicated, there is a vital role in achieving common sense solutions at local level. Although some matters can be prescribed at national level by legislation or guidelines, many matters can only be resolved by maximising the degree of consensus at local level both in anticipation of the new rights and in operating those rights. As the noble Lord also said, there is a role in relation to Part II of the Bill.
I think we should return on Report to issues such as membership and how far we want to lay that down nationally. We want to retain a degree of flexibility while recognising that there are interest groups other than those prescribed in the original amendment which would need to be considered for membership.
So far as concerns funding, we have indicated that we have in mind adequate funding. That will include funding of the access authorities and the local access forums. I said "forums" that time. Obviously the key issue involved in this section is to sort out the plural! All of us are a bit schizophrenic about this. I expect that the noble Baroness, Lady Miller, and I have some vague recollection of someone trying to teach us Latin. In my case, it was probably when it was still a living language! It is some time back. I am assured that Fowler's Modern English Usage prefers the word "forums" and has done so since 1926. Therefore, I suspect that any final version will be set out in line with that and with the noble Earl's original prescription.
Before we leave the subject of forums and funding, can the Minister say whether the Government have considered how these maps will be paid for? There will be many maps on the go. As the noble Lord will know, the Ordnance Survey Department holds the copyright. An Ordnance Survey disk covering about 2,000 acres of land costs something like £40 a year. Anyone who has the use of that disk has to pay more. Therefore, there will have to be some kind of funding to deal with the Ordnance Survey, or a great deal of money will be exchanging hands. Does the noble Lord know anything about that? If he does not, perhaps he will agree to take it into account when considering what all this will cost.
I should perhaps undertake to take the matter into account. Most people will acquire their maps in the same way as at present. It is the provision of public information that will need to be covered by the funding. This will certainly be taken into account.
I thank the Minister for his comments. I believe that the Government have been well served in this instance by the Countryside Agency, which produced draft guidance on local and national park authorities' local countryside access "forums"--a word with which we seem to be sticking. That seems to have pre-empted many of the issues that noble Lords raised tonight, including the size of the membership and how to stop it becoming unwieldy by suggesting that the 16 to 20 members network with others. The draft guidance issued at the beginning of the month will provide a very solid and sound framework, which means that it should not take too long to perfect the system. I beg leave to withdraw my amendment.
In moving this amendment I shall speak also to Amendments Nos. 67 and 69. These amendments deals with the definition of "open air recreation". It may sound ridiculous, but the amendment defines that expression as meaning,
"recreational activities necessarily carried out in the open air".
The phrase "open air recreation" is not defined in the Bill. My amendment would prevent it being any recreation carried out in the open air. Outdoor rock climbing, hill walking, kite flying, orienteering or walking outdoors are obviously normal pursuits that we assume would be covered by the amendment. However, organised football games or other sports would, I presume--again, I should like the Minister to clarify this--not be included.
The Bill mentions walkers in particular. Therefore, I assume that that is what is meant by "open air recreation". I have tried to make one or two suggestions as regards what I believe it includes--namely, rock climbing, hill walking, kite flying, orienteering and walking outdoors--but obviously that would not include organised games played outdoors. I should be most grateful for some clarification on that point.
Amendment No. 67 suggests leaving out the words "remain on" and inserting "walk over". When the Bill was introduced, the Minister made it absolutely clear that it addressed the right of access on foot for the purpose of walking; in other words, the "right to roam". It was for walkers and not for other recreational groups. The current reference to "open-air recreation" makes this far from clear. Indeed, it also has the effect of complicating the Bill by necessitating much of the content of Schedule 2.
If this amendment were accepted, there should be no need to specify that those exercising this new right of access over the land defined as access land must not bathe, hold organised games and so on. It should be clear that this Bill facilitates walking from point A to B, or wherever people may wish to walk within their legitimate means. Thus anything at odds with that is not permitted by the Bill. Clearly if while walking one stops for a rest or a sandwich, one should not be in danger of being prosecuted for not physically walking at that particular moment. I hope that the Minister will take that into account. We need greater clarification and that is why I have proposed the inclusion of the words "walk over".
Amendment No. 69 states,
"Page 2, line 23, after ("recreation") insert ("on foot").
At Second Reading in this House the Minister twice said (at cols. 629 and 749) that the right of access would be a right of access "only" "on foot". I believe that was intended as an assurance, but it would be helpful to have it on the face of the Bill. If it was not intended as an assurance, I shall be more inclined to press the amendment.
In the Commons a similar amendment was resisted on the grounds that it would exclude wheelchair users, or prevent people taking photographs (cols. 103-109). I accept that the amendment as drafted is technically slightly flawed as someone who is in a wheelchair cannot be walking. However, wheelchair users are specifically enabled to have access to the land under Schedule 2(1)(a). The reference to Section 20(2) of the Chronically Sick and Disabled Persons Act 1970 is a reference to wheelchairs. It is unlikely that an owner or occupier would object to a walker taking photographs (provided they did not infringe privacy), but specific provision could be made to allow the taking of photographs if this was thought to be necessary. In any case, stating that access is on foot would surely not prevent someone taking photographs.
Including the words "on foot" would make it immediately clear that the right of access did not include access by bicycle, on horseback, or by motor bike, microlight, hang-glider, helicopter or those modern things with wheels on which one stands and whisks along--I am not sure of the terminology for them.
The amendments may seem a little unnecessary but it would be helpful to be given some clarification on these matters. I beg to move.
I support my noble friend on these important amendments which open up a completely new concept of access from the one we have been used to in this country. At the moment the public have a right to pass and repass over a highway. That is changed by the Bill which states that any person is entitled "to enter and remain"--that is a completely different concept from that of pass and repass--
"on any access land for the purposes of open-air recreation".
My noble friend has mentioned a few kinds of recreation that people could undertake on access land. There are a number of definitions in the Bill. In the interests of the future good working of the Bill, I hope that the Minister will reconsider this issue and that it will be more tightly defined; otherwise I can envisage more court cases arising.
I say to my noble friend Lady Byford that it is not up to us to get the drafting of an amendment correct; our job is to convey the principle and to convince the Government that the principle is correct. It is then up to their "fifth cavalry" to get the drafting right at a later stage.
The Bill provides a right of access to land for "the purposes of open-air recreation". This term was not defined in drafting the Bill because we considered that a definition would be undesirably restrictive and unnecessary.
The noble Earl, Lord Caithness, questioned the establishment of a new principle. To the noble Earl I would say that the Bill follows the pattern set by the National Parks and Access to the Countryside Act 1949. As under that Act, the Bill lists excluded activities rather than included activities. That list has been updated and now rules out activities such as hang-gliding as well as fishing, horse riding and organised games.
The effect of Amendment No. 67 would be to prevent activities other than walking which we would expect might take place under the new right--for example, bird-watching, picnicking, jogging or taking photographs. Limiting the right to being able to "walk over" the land could cast doubt--
I seriously doubt whether there is anything the noble Earl cannot do. I think that that is extremely unlikely. I should expect him to demonstrate his inability to do so!
Activities such as sitting and reading should be encompassed within the provision. There should be no concerns that the term "remain on" in the Bill could lead to the right being used other than as intended. The phrase in full is,
"remain on any access land for the purposes of open-air recreation".
The definition proposed by Amendment No. 67 is narrower than the right we wish to provide and potentially limiting activities such as sitting to eat a sandwich and enjoy the view we believe would be undesirable. The basic right is to use the right of way--it is to pass and re-pass--and incidental activities. I understand that that has recently been extended by the courts. However, the new statutory right is not intended to limit to passing and re-passing. It deliberately makes clear that, for example, picnics will be permitted.
The noble Baroness accepted that there is a need to include reference not only to wheelchairs but buggies. Amendment No. 69 would clarify the general intention with regard to access on foot. I remind the Committee that we have made clear that it is not a right for cyclists, horse riders or motor vehicles, and these are prevented by the restrictions set out in Schedule 2 to the Bill.
Under the Bill as currently drafted we can, if necessary and by regulations, add to the list of activities falling outside the scope of the right. The definition of open-air recreation given in Amendment No. 22 would be likely to be unnecessarily restrictive. It would exclude activities which can properly take place inside or outside. We believe that those excercising the new statutory right should be able to stop, sit and read. Many of those are activities not necessarily carried out in the open air.
With those explanations, I hope that the Committee will agree that the nature of the right, which is indeed a modest one, is made clear by the expression "open-air recreation" taken together with the restricted activities in Schedule 2. I hope that the noble Baroness will not feel it necessary to press the amendment.
I thank the Minister for her response. I was glad that she reminded us that the list that was laid down in 1949 has been updated. As I cast my mind back to 1949, I realised that many of the outdoor recreational activities that people are involved in today would have been unheard of then. The main purpose of my amendments was to define that the principal recreation for which access should be granted was walking on foot. The Minister referred to picnicking, which is allowed, but the lighting of fires and camping are not. I accept that.
I have heard what the Minister has to say and at this stage I shall not push the amendment any further. I beg leave to withdraw the amendment.
moved Amendment No. 31:
Page 2, line 21, at end insert (", or
(b) land which fell within paragraph (a) above on the day which this Act received Royal Assent but which has subsequently ceased to be common land within the meaning of the Commons Registration Act 1965, but does not include land which has ceased to be common land under a statutory process of compulsory purchase or exchange.").
The purpose of the amendment is to address a perceived gap in the legislation: the threat to registered common land that could be at risk of deregistration. Those who perceive a gap in the Bill might decide that they do not want to have to grant access and might press for deregistration. Although there is not a great deal of new evidence of commons being deregistered, it is a real threat and it is hard to understand why the Government would not want to address it. Given that Parliament created the official registers of common land to ensure that it was safeguarded for the future, it would surely be sensible to include a precaution in the Bill.
When discussing Amendment No. 6, the Minister said that proposals to amend the legislation on commons were in the pipeline. Our worry is that it might be a very long pipeline. In the meantime, as access comes in, a number of commons could be deregistered and be lost for ever.
I should like to hear any reasons why the Government might not want to accept the amendment. They might argue that deregistration is only a theoretical risk, because the Commons Registration Act 1965 allows land to be kept on the register of commons even if the commoners' rights have been lost, as long as it is open, uncultivated and unoccupied, which is known legally as "waste land of a manor". However, that protection is quickly lost if the owner of a common ploughs and cultivates it. Even a one-off action could strip the land of its legal status.
The Government might also argue that it would be wrong to freeze the application of the new access rights to commons registered at Royal Assent, because certain specific areas of land are known to have been mistakenly registered as commons. That argument does not hold water either, because there are no powers to remove such land from the register, so the amendment would have no effect in such cases. In any event, houses and gardens are excepted land under Schedule 1.
The law allows the compulsory purchase of common land or the provision of exchange land where commons are taken for necessary development. It could be argued that the amendment would neuter such arrangements and thereby work against the public interest, but that is not our intention. We would be happy if the Government wanted to write in a suitable saving.
In the interests of preserving commons as they were intended to be preserved and not leaving a loophole, I beg to move.
I rise to speak to Amendments Nos. 152, 154 and 190, which stand in my name. The first two are simply paving amendments. The main one is Amendment No. 190.
My main interest in the Bill is the future of downlands and heathlands. I do not want to enter an argument over definition. Therefore, for the purposes of this amendment I simply use the words "downland" and "heathland" as they are used in common parlance. Such lands are much under threat. A great deal of them has already been lost and many of the lands that remain are small and fragmentary. Indeed, my noble friend Lady Byford made the point that it may be a good idea to try to exempt such tiny pieces of land so that they are maintained. However, that obviously does not find favour with Ministers and therefore I believe that it is necessary to try to protect such land.
One would expect a Bill such as this to offer additional safeguards to the precious land that is left. However, I fear that the law of unintended consequences may take over. As drafted, the Bill allows for reviews of the definitive maps which show the open access land to take place at least every 10 years and possibly less than that because regulations could be invoked for a different timescale. In my submission, that will create grave uncertainty for the walkers and ramblers, who may not know at any one time precisely what is or is not included in open access. Clearly it also represents an uncertainty for landowners, who may well be dissuaded from acting in the best interests of the land if they feel that any changes which they make could make their land more likely to be open access land.
It may be easiest to make clear what I have in mind if I give a case history. I have the permission of the owner/occupier to mention his name and his farm. He is Mr George Atkinson who has 750 acres on the South Downs. On his mixed farm is a very beautiful, rather hidden, steep valley called Hockham Coombe. It is a delight. It is rich in wild flowers and butterflies and is a small, very fragile area. It is overlooked by the South Downs Way and therefore it would be perfectly possible for those who sought to see the rather precious, delicate valley to do so without going down into it. However, the valley bottom has been improved for grazing. Therefore, Mr Atkinson is uncertain as to whether in the future it could be categorised as "open country" and therefore open to access, which could put that rather fragile piece of country very much at risk.
The farm contains a large field of arable land at the top of the down. It would help the narrow, little valley enormously if the field were allowed to revert to downland. A number of bodies support such a move, including English Nature, the Wildlife Trust, the Countryside Agency and the relevant local authorities. However, Mr Atkinson is adamant that he does not want to make the change if at a later stage it could be redesignated as open access land.
That leads me to the main amendment in the group. I seek to remove uncertainty so that once the maps have been prepared and set forth in statutory form they should be regarded as permanent and not subject to periodic reviews in the way that the Bill envisages.
Under my amendment it would be possible to alter the open access in two different sets of circumstances. That could be done, first, under the Town and Country Planning Act 1990, which could remove land from open access for development using the proper statutory controls. Secondly, it would not be possible to create new open access land without the consent of the landowner concerned. That may sound somewhat restrictive but I am sure that there are various ways in which in the future landowners could be persuaded to open up more land for access if they were not forced to do so. First, there is good old good will. When people are not under threat very often they are far more willing to make adjustments than if they are. And of course, there are many ways in which one could alter the balance through, for example, grants conditional upon open access, possibly changes in capital taxation and any other way that one might think of in the future which might persuade landowners, rather than threatening them, to make changes to allow more open access.
I have given this one case history but it could be repeated all over in areas where there is heathland and downland. It would be a great pity if this Bill, which is intended to help the countryside and to give access, dissuaded landowners from making changes in the management of their land which will be for the benefit of all. Therefore, there will be no incentive to change from arable land on the downs to a more traditional form of downland with that threat of periodic review hanging over them.
For those reasons, I have tabled these amendments. I shall be interested to hear the Minister's response.
As regards Amendment No. 31, we recognise that some concerns arise from the potential deregistration of common land. For example, research undertaken by the Countryside Agency shows that over three-quarters of the common land in England--and almost 90 per cent of the land in the south-east--has no rights of common at all or only a single right of common registered over it. In those circumstances, there is clearly a potential threat of deregistration.
However, even where land is deregistered, about 85 per cent of existing registered common land will still fall to be classified as access land because it falls into the category of mountain, moor, heath or down. Therefore, access would be safeguarded. Much of the rest of it, the other 15 per cent, is likely to be in public or institutional ownership.
Therefore the problem is smaller than was suggested by the noble Baroness. We are addressing the problem in a different context; namely, through the consultation paper to which I referred earlier--Greater Protection and Better Management of Common Land in England and Wales. That proposes that in future it should not be possible to deregister common land if the right of common had been extinguished. Given the relatively small number of instances which are likely to arise, it is better to consider the matter in the broader context of future management of common land rather than within this Bill. Therefore, I am not persuaded at this point that we should give any commitment to future legislation nor to bring forward any amendments to the Bill.
As regards the amendments moved by the noble Baroness, Lady Fookes, although she said that Amendments Nos. 152 and 154 are paving amendments, they raise in themselves a matter of principle in that they would require maps of open country to reflect the open country at the date of Royal Assent, whereas the Bill requires the countryside bodies to map open countryside on the basis of its status at the time the map is surveyed and completed.
There would be a problem were we to adopt the approach of the noble Baroness. It is not really a practicable proposition to map the land on an historic basis. The countryside bodies which are to do that work over the next two or three years have no way of knowing what precise use was made of the land at the exact point of Royal Assent. Therefore, it would be difficult for them to assess the state of the land as it was. They can only do that at the point at which they survey it. Any formula which attempts to ascertain the nature of the land on an historic basis is subject to all sorts of uncertainties and would probably lead to unfairness as well as impracticality.
The noble Baroness's key amendment is Amendment No. 190. I am not sure that I can comment on the particular case which she raised. But I do not necessarily accept that a general provision effectively freezing maps of open countryside for the future is the way to address that problem. Clause 10 requires reviews to be undertaken at least every 10 years. The amendment would mean that land could not be removed from maps unless a development had taken place for which planning consent had been given or deemed. At the same time, it would remove the scope for new land to be added to the access maps unless the owner had given his consent.
However, new open countryside may be created by active management of the land, often with conservation-oriented objectives, and existing open country may be lost through development, improvement, natural changes and so forth. We believe that such changes should, in due course, be reflected in maps of open country and not be frozen at their original point.
The review will also allow the countryside bodies to include on maps land which was incorrectly omitted when the maps were first issued. We do not think it right for landowners to be able to veto the mapping of such land, any more than they should have a right to veto it when the maps of open countryside are first drawn up.
We therefore do not think that this is the best way to deal with difficult local situations. Such situations would be best dealt with by local solutions and advice to the countryside agencies reflecting those local concerns. A general freezing does not seem to me to be the solution. I therefore hope that when we come to it, the amendment will not be pressed, and that the noble Baroness will also not pursue her amendment.
If the Countryside Agency proposes changes at a later stage, it will still have to go through the process of consulting local access fora, and therefore all those interested in the situation, such as the noble Baroness described in the South Downs. Many localised issues could then be addressed in that context rather than by a provision which would freeze the totality at a particular point in time.
The Minister's reply that possibly only 15 per cent is at risk, or if we take the institutional ownership, 10 per cent, is not reassuring. A loss of 10 per cent of commons could be worrying. However, I should like to conduct further research between now and Report to see how concentrated that 10 per cent is geographically. If it mostly falls within one area, that would be a serious issue to which I should wish to return. In the mean time, I beg leave to withdraw the amendment.
I rise to move Amendment No. 33 tabled in my name. Members of the Committee will recall that on Amendments Nos. 16 and 26 the noble Lord, Lord Whitty, talked about definitions of "downland" but did not give us any. Members of the Committee will be well aware that there are not any in the Bill. This lack of definition of moor, heath and down, and the omission of any burden on any authority to come up with a common definition, are major flaws in this legislation.
The Bill relies on accurate definitions based on specialist knowledge which can be applied consistently to all parts of the country. As yet, there is no provision for that. From the landowner's point of view, the current provisions in the Bill will cause great uncertainty. From the visitor's point of view, the inevitable wrangling over definitions and appeals will unnecessarily delay their access on to the land. The amendment aims to end uncertainty by giving the responsibility for the definition to a single body and to ensure that the definition used to decide which land is eligible under the provisions of the Bill is common to the whole country.
I would hope that the body with the responsibility to provide a definition would use the expertise of professionals to decide one. Not every access authority will have access to the necessary specialist skills to define land in a way which is quantifiable and accurate. Left to their own devices, not every authority would produce the same definitions. The Government have recently been dogged with accusations about the health service: that the current system works better for people under some authorities than others. The Bill, as it stands, would create a similar situation. We might see land that would be excluded under some access authorities included in the maps produced by others. The amendment is designed to prevent that. Our earlier discussions reminded me of the consultation paper that the Government issued preceding this Bill. That indicated that the definition of,
"moor, heath and down", was to be classified by reference to vegetation. None of those references is carried forward in the Bill to guide either the countryside bodies or the Secretary of State in handling appeals. Can the noble Lord, Lord Whitty, say why, when it was in the consultation paper, it is not in the Bill?
There are specific problems in the case of moor, which may not only refer to heather-covered ground, but also in some parts of the country to low-lying marshes. The Oxford English Dictionary, in the second edition, provides several definitions, including,
"a tract of unenclosed wasteground, usually uncultivated, covered in heather; a heath"; also,
"a tract of ground strictly preserved for shooting".
Another definition is "a marsh". It also offers a specific meaning in Cornwall as,
"a waste where tin is found".
In any case, it appears from the original consultation paper--a vegetation-based definition--that downland can be limestone as well as chalk, thus it includes the Mendips, the Cotswolds and the wolds, as well as the downs. The noble Viscount, Lord Bledisloe, spoke of that and was disturbed at the width of that definition, although the noble Lord, Lord Greaves, welcomed it. Again, the Oxford English Dictionary offers definitions including,
"an open expanse of elevated land specifically in the plural; the treeless, undulating chalk uplands of the South and South-East of England serving chiefly for pasturage; or a sandhill".
Finally--again a point picked up by the noble Viscount, Lord Bledisloe--the term "open country" appears to be a misnomer since there is nothing in the definitions provided which excludes enclosed land. For example, downland could be enclosed and used in supporting an equestrian enterprise but still be within either the dictionary definition of "down" or the definition used in the consultation paper. That may be less relevant to policy makers, appeals and the court; but it clearly does not help the public understand to which land they are being given access and which land is being excluded from the right of access.
Finally, if vegetation-based definitions are used, it is possible for land to move in and out of the right of access, subject to the procedure for revision of mapping, according to changes in its use over time. I believe that the importance of definitions at this stage strikes at the very heart of the Bill and it is important that we get this right at this stage so we get greater clarity. That is why there should be a duty on the authority to make definitions after consultation. I beg to move.
I apologise for coming back to the point of definition, but I agree with the noble Earl, Lord Caithness, that this is crucial.
Perhaps I may seek to make the point which I did not succeed in making earlier in relation to the definition of "open country" in Clause 1(2) of the Bill. That says that,
"open country means land which appears to consist wholly or predominantly of mountain, moor, heath or down".
That is the same as saying that access land includes all land which consists wholly or predominantly of mountain, moor, heath or down, whether or not it is open. That can be extremely dangerous. I do not believe it is intended, but it is what is said.
Earlier speakers appear to have considered that the absence of a definition gives the authority a wide discretion as to whether it labels specific land as access land. But that is wrong. The map maker has a duty to include in his map all land which is wholly or predominantly mountain, moor, heath or down, and has no power to include land which is not.
If there were a challenge, the court would have to decide what was meant by a down. It must either say that the map maker had made a mistake by including something that was not a down or by failing to include something which even though not open was in fact a down. It seems to me that without a definition, and without an overriding provision whether or not something is a down--it does not count as open country unless it is open--there are likely to be serious problems.
I do not know whether the solution propounded by the noble Earl is ideal but I would like an assurance from the Government that the problem of the definition will be cleared up at the Report stage.
The noble Earl is not going to catch me that way. He will know that current convention is that the words of the Minister, which are always carefully chosen, have almost equal weight in court to what is on the face of the legislation. The area is complex and the remarks of the noble Viscount, Lord Bledisloe, and others indicate that.
As the noble Earl's amendment suggests, the job of identifying what falls within these categories must rest with the Countryside Agency. It is its responsibility to come forward with a definition and approach which can be seen to be reasonable and against which legal judgments might have to be made in future. The amendment mentions "clear definition" but clearly there is scope for judgment in individual cases. However, the Countryside Agency will be responsible and it and the Countryside Council for Wales are working on draft definitions.
The National Countryside Access Forum, which represents a wide range of people, including landowners and user groups, has already discussed the paper prepared by the Countryside Agency setting out draft definitions of the categories of open countryside and the agency will consult more widely before it concludes the definitions.
The initial definitions, contained in the consultation paper to which the noble Earl referred, have been subject to comment and criticism. They are not entirely related to vegetation but there is criticism that they are predominantly so and there is therefore a need for a wider approach.
As regards coming forward with a definition of "open countryside" which includes enclosed land--the point raised by the noble Viscount, Lord Bledisloe--little downland is not enclosed. Most land is enclosed and the only question is of size and degree of enclosure which is irrelevant for the purposes of mapping open countryside. The precise parameters for identifying moor, heath and down require careful consideration. The original drafting proposals would need to be reviewed not only in the light of representations made but also in the light of the pilot mapping exercises which the Countryside Agency is about to undertake. The Bill requires the countryside bodies to determine whether the land is open country by reference to the categories identified in the amendment. As we shall discuss later, the mapping process will provide for extensive consultation and the right of appeal. There is therefore a complex process rather than the simple matter of a definition which then becomes absolute. There are implied requirements on the Countryside Agency not only to act reasonably in relation to clear definitions but also in relation to the process of objection or comment on them. Therefore, I do not believe that the amendment as it stands is appropriate but the intention that it should undertake the responsibility already exists.
The Minister said a few moments ago that in England the Countryside Agency was working with the Countryside Council for Wales on the matter of definition. The noble Lord will be aware that the Countryside Council for Wales is responsible to the National Assembly for Wales. I can foresee a situation in which perhaps the National Assembly disagrees with any agreement reached between the Countryside Agency and the Countryside Council for Wales. Therefore, does the Minister agree that it would be far better to define these matters in statute rather than leave it to these bodies?
In effect the Minister has told the Committee that an Act of Parliament is to give people the right to roam on land which cannot be defined. The Minister refused to give me a definition of what is in the Bill. If the noble Lord does not know where people will be allowed to go, surely he should find out the Government's intention and return to the House. To pass an Act which says that one can walk on a heath or open land when that is not defined is not good law.
The Bill defines a process for arriving at a geographical description and mapping the land to which these rights will apply. It is that process which the Committee is being asked to accept. Part of that process is that in reaching their mapping decisions the countryside agencies have a clearer definition--that is what they are working on currently--than we have provided at present or in the initial consultation paper. However, that is part of the same process. It is not just a question of definition. That definition must then be subject to a process of representation, applications for modification and appeal. Therefore, in all those respects the countryside agencies must operate reasonably. It is not just a question of definition. If one recorded on the face of the Bill solely the question of definition one would restrict that process and thereafter the rights of interested parties to participate effectively in it.
I do not believe that there is an enormous amount between the objective of the noble Earl's amendment and what is being required of the countryside agencies. However, if it was limited to definition it would cause a problem. As to the possibility of the Countryside Council for Wales arriving at a different definition and approach from those in England, that possibility exists. I said that both bodies were in close communication in drafting those definitions. However, they work to different bodies, which is the nature of devolution. It may be that there are some slight differences but I suspect that they will be largely ironed out in the course of that process as far as concerns definition. However, the Countryside Council for Wales will have to pay attention to different parties from those to whom the Countryside Council in England pays attention.
The Minister told the Committee that the Countryside Council for Wales and the Countryside Agency in England were formulating definitions. Does he recognise that unless he accepts an amendment on the lines of that moved by the noble Earl the countryside agencies' definitions will be writ in water? If anyone seeks to challenge them the court will have to decide what a down is. The agency's definition of a down will just be an argument and will be of no avail. It is for the appropriate authority to decide whether a piece of land comes within a definition, but if one puts a word in a statute and says nothing else it is for the court to decide what it means. The Minister is simply inviting every landowner and, contrariwise, every ramblers' association to challenge the map by taking the matter to court and arguing that, although the agency has said that certain land is downland, its definition is not really what "downland" means.
Perhaps I may say that the Minister has twice referred this evening to the pilot studies that are going on. I should be grateful if he would remind the Committee exactly what the pilot studies are, what areas they cover, the timetable they cover and whether in fact they will have finished being pilot studies and have any relevance to the Bill before it is passed. I think it is important that we understand where we are at the moment. The Minister also said in response to my noble friend's amendment that there was not an enormous amount of difference between us. If there is not, and as the amendment seems to be receiving support from around the Chamber, would it not be sensible to accept the amendment?
The amendment is incomplete in relation to what the duties of the countryside agencies will be. Not only do they have to, as I say, act reasonably in drawing up the definition, but wherever the definition appears there will always be the possibility of that being challenged. I do not accept the point of the noble Viscount, Lord Bledisloe, that whoever draws up the definition--whether it is formally on the face of the Bill, whether there is a responsibility defined on the face of the Bill or whether the agencies themselves draw it up--they can be challenged. No one is restricting that challenge, provided the defence is that they have acted reasonably in drawing up that definition and that the process adopted has itself been reasonable in respect of the individual case.
The answer to the question about the pilot studies is that they will not be ready in the next few weeks. In fact the contracts are about to be let. There is a pilot mapping exercise in a number of areas. I regret to say to the noble Lord, Lord Roberts, that I do not have the pilot areas for Wales in front of me. In relation to England they are Kent, Surrey, East and West Sussex, Lancashire, Cheshire, the South Pennines and the Peak District. Those pilot mapping studies will look at the methodologies for mapping. They should be concluded by early next year. The lessons from them will inform the process after Royal Assent on the statutory mapping areas. They will last less than a year. We shall then inform that process on the basis of those studies. I recognise that that question was raised earlier and apologise for not answering it sooner.
In any particular case the Countryside Agency's actions are ultimately challengeable in court, as is any agency of the activities of Government. Part of that might either be in the definition itself or the way in which the definition is described. There is a consultation period taking place now with all the bodies involved in the national forum. Therefore, hopefully we can reach a consensus on the basic definitions. The fact that that basic definition is being used would normally be regarded as sufficient by the courts. That is not to say, however, it could not be challenged in the courts. For example, I should think that if the forum comes up with a definition of downland that all the parties to that forum accept, then that is a fairly good definition. That is not something we are going to determine here this evening.
Should not that be done before you bring in an Act of Parliament rather than after? Time spent in reconnaissance is seldom wasted I was told a million years ago. If you do not know what heath/downland is, you cannot pass an Act giving people access to it. I do not understand why we cannot have a Bill before us which actually gives a proper definition. Otherwise it is a muddle.
Most people have a fairly good idea of what we are talking about. The question of fine-point definition will be a matter for the agency, as it is in many other areas of legislation. I think that Members opposite are making a meal of this point for purposes I do not totally understand. I have indicated that I agree with the noble Earl that this should be a central responsibility of the agencies. Those agencies will have to consult all interests involved in drawing up those definitions and implementing them. That is the normal way in which responsibilities of agencies operate under statute. I therefore do not accept that we should have done any more by this point for the Bill to be effective when the agencies have fulfilled their obligations under that provision.
When earlier we discussed the fast-track approach, the noble Lord robustly defended his position largely, I think, because he wanted to ensure that access areas were up and running as soon as possible. If the noble Lord does not accept the amendment or something similar to it, the possibility of litigation and delay will increase enormously. That will lead only to bad feeling when the provisions of the Bill start to be implemented, which is surely the last thing the Government would want. I should have thought that my noble friend's amendment was totally logical and one that the Government could accept without difficulty. We could then get the thing off to a good start.
It is a basic principle of legislation that the courts have to determine points of which Parliament has not thought in the process of legislating. But when a question is raised during the consideration of legislation it is not good practice for a government to say, "We do not know the answer to that. We must leave it to the courts". That is not the right way to legislate. There was a period during the consideration of Finance Bills when, if difficult questions were asked, Ministers used to say, "We shall have to leave that to the courts". I am glad to say that in recent years that tendency has greatly diminished. It is totally legitimate for Parliament to say to the Government that a word in legislation needs to be defined. If the Countryside Agency or other agencies are to produce a definition in the future, which will not necessarily be the definition the courts will accept, surely the Government can say now that they will expedite the preparation of the definition and come back at Report stage with a definition to put into the Bill.
I think that noble Lords are getting the wrong end of the stick. First, broadly speaking, I agree with the objective of the noble Earl's amendment that the countryside agencies should have the responsibility of drawing up a definition as part of the process of defining access land.
Secondly, those agencies are already engaged in that process. They are working together in the forum, which should maximise the degree of consensus around the initial definition that was proposed in the consultative document published last February. Everyone has been feeding into the process, so the agencies, within the forum, should be able to produce something approaching a consensus on the definitions. That is the process in place. It is robust and should ensure that the final decisions cannot be overturned in the courts.
We do not intend to leave these matters to the courts; the agencies have a responsibility for taking the lead in drawing up the definitions and they are doing so in a way which ensures that all the major interest groups have an opportunity to contribute. In that way, it is most likely that a consensus will be reached. That seems to me to be the most sensible way to proceed.
However, it would certainly not be sensible for this Committee to attempt to arrive at a definition during our discussions this evening and then to put that definition on to the face of the Bill. As I have said, the process is in place. I acknowledge that it is reflected in part in the amendment tabled by the noble Earl, but, because the total process is not reflected, I cannot accept his amendment. Having said that, I believe that we share the same objectives; namely, to see the Countryside Agency and the Countryside Council for Wales carry out this task. For that reason, I hope that the matter can now be put to one side. However, if Members wish to return to the matter on Report, I may be able to consider it a little more.
I do not wish to be difficult, but this is an important point. I believe that we all agree that it is perfectly acceptable for the Countryside Agency to establish the correct definition. It is probably the best agency to undertake that task. However, the point that I and other noble Lords have been trying to make is that that definition should be brought forward, as a part of the Bill, to be agreed by Parliament. Parliament, rather than the agency, should have the ultimate say on whether the definition is correct. That is the point here.
With respect, I do not believe that that is the point lying behind the noble Earl's amendment. His amendment places a responsibility on the agencies and puts that responsibility on to a statutory basis. I would say that I can agree with that, but that particular responsibility is not the totality of their responsibilities as regards the drawing up of the final boundaries of the various different kinds of land.
As I have said, we can consider further whether there is an appropriate way in which that process can be put into the Bill in more detail than at present, but I certainly would not move as far as the noble Lord has suggested--namely, to put the full and fine detail of the definition on to the face of the Bill. That would not be helpful or in line with the manner in which such matters are approached in other legislation.
I thank the Minister for many of his remarks. It is obvious that we are now very close in how we are considering this matter. Perhaps I may ask him two further questions. First, does the Minister think that it is important to write on the face of the Bill that this is the duty of the appropriate body? Secondly, if he does think that, will he agree to bring forward at a later stage an amendment that will cover the point he seeks to settle, as well as my intentions--with which he agrees? I can only reiterate that we now have found common ground between us here.
The Minister can call upon his experts to draft the amendment to cover the specific points. I shall be happy if he can bring forward such an amendment because I am firm in my belief that it is important to put this on to the face of the Bill. If the Minister agrees, will he agree to bring forward his own amendment?
Hitherto I have not been convinced that we need an amendment to cover what appears to me to be the obvious responsibility of the agencies in this area. However, in view of the anxieties that have been expressed over the past 31 minutes on the issue, I shall have to reconsider that. I cannot give an absolute assurance that I shall come forward with an amendment, but no doubt, in one form or another, we shall consider this issue again on Report.
In view of that reassurance, I think it would be churlish of me now to divide the Committee. I had intended to do so, but, given the reassurance that the noble Lord will think again on the matter, I believe that it is only right to allow him to do so. I hope that he will come forward with an amendment, which I believe will find support from all around the House--including support from noble Lords sitting on the Benches behind him. I beg leave to withdraw the amendment.
I wish to move the amendment standing in my name. It seeks to enable those training racehorses to utilise gallops and exercise grounds, but recognises that that use may be restricted to particular times. I understand that the Minister has indicated that we may have a certain amount of common ground here, especially as regards an amendment to be moved in due course by the noble Lord, Lord Donoughue. However, it is important that people who use the facility of free access know that when they are on those grounds they are safe and secure, a point raised earlier. Amendment No. 34 seeks to insert:
"Land used for gallops or other exercise grounds for racehorses during recognised restricted times".
Perhaps I may speak briefly to the amendment of the noble Lord, Lord Donoughue. Both amendments concern the issue of safety--not only the safety of an individual who may wander across exercise grounds not knowing that a horse may be galloping down very shortly, but those of us who are used to riding know very well that any sudden movement can scare or startle horses. So it is not just an issue of the safety of the walker--although that is my main concern--but also the safety of horses in training and their riders.
At the moment, both Epsom Downs and Newmarket practise restricted timings. We urge the Government to consider extending such a provision to other areas known as "gallops". The Government have given this matter due consideration so I shall not labour the point further. My amendment seeks to facilitate the gallops taking place. Most take place in the morning but in some areas they take place at different times. Presumably the noble Lord, Lord Donoughue, will speak specifically to that matter. My amendment seeks to ensure the safety of the general public, of the horses and of those riding and exercising them. I beg to move.
I support the amendment. I live only a few miles from Newmarket and I am very familiar with the training gallops there. They have been well established for centuries. It would be a serious interference with the training of racehorses if there were to be the interruption of people with a right to roam. It would not only interfere with the training of racehorses in a serious way but could sometimes endanger human life. An exception needs to be made in the way suggested by my noble friend's amendment.
In speaking to Amendment No. 56A, which stands in my name, I wish to declare an interest as a part-owner of a racehorse exercising regularly, beautifully, on a gallop in west Northamptonshire and also as a member of the Ramblers' Association. So I am conscious of both sides.
The Minister said in opening and indicated in a letter he kindly passed to me that he accepts the basic arguments--not necessarily all the arguments--that have been put forward and that he proposes to bring forward a government amendment which will exempt gallops. On behalf of my colleagues who have supported my amendment, I welcome that and thank him for it. I do not therefore propose to detain the Committee with the full battery of overwhelming arguments I spent much of yesterday preparing, but I shall briefly summarise them in case we have to return to this battle at Report stage.
The basic case, so well put by the noble Baroness, Lady Byford, is one of risk--risk to horses, to riders and to ramblers. Thoroughbreds are very large, very fast and often very nervous. They sometimes emerge in the morning fog travelling at about 30 mph. The risk of accidents, indeed death, is very high. It is higher than that on a golf course, which is accepted in the Bill, when the only risk is to the recipient of the small, if painful, ball, whereas the risk with horses is to several people. A very valuable horse is involved in each case, and possibly a string of horses. From the beginning it has been clear that gallops must be exempted. I am pleased that the Minister accepts that.
Several drafting issues have arisen. There is the question of the definition of a gallop, which I was early officially informed did not have a legislative pedigree. It has a good literary pedigree. It appears in late Victorian literature; it was in The Times 80 years ago, and I have found it in one Act of Parliament, so I am sure that we shall be able to resolve the point.
I accept that designating gallops is serious issue. We do not want to be in a position where individuals can self-designate a gallop, a piece of land on which they might ride once a month, as exempt. One solution that I have indicated in the drafting of my amendment is to make use of the Jockey Club list, where trainers and permit trainers indicate gallops when registering.
The Government might wish to interpolate a statutory body such as the Countryside Agency. That ought to be acceptable, provided it is clear that the agency would normally accept the advice of the Jockey Club on this matter.
The issue of times, raised by the noble Baroness, worries me a little. I am aware that there are certain long-established gallops which have access at some times and not at others. I should be slightly concerned if that applied everywhere. It works where everyone knows the gallop, but in certain less well-known gallops it might present difficulties. We do not, for instance, want a rambler with children going onto a gallop at one minute to four because the exemption starts at four and the trainer with 30 horses coming up at one minute past four. It is an issue that we can discuss, and to which I am sure we shall find a solution. Given the Minister's indication of his very helpful approach, it is not my intention to speak further or to press the amendment at this stage. If acceptable to the Committee, I suggest that we allow the Minister to elaborate on what he has in mind. Then, we shall be in a position before Report stage to consult on it and hold discussions and, it is to be hoped, achieve a solution that is satisfactory to the needs of safety in racing and race training, which must be the ultimate priority.
In view of my noble friend's invitation, without wishing to curtail further debate it may be helpful if I indicate and confirm most of what the noble Lord said about the Government's intention. We recognise this as a serious problem that has to be addressed. We therefore have in mind the introduction of an amendment that would exempt the right of access to land used for the training of race horses. However, we are not absolutely certain as to the exact formulation involved. As my noble friend indicated, we envisaged that the right of access would possibly be constrained by time: by saying that in general it would apply between the hours of sunrise and midday. But there are some gallops where that would not apply. A separate provision would be required in order to agree other times in appropriate circumstances. Moreover, as my noble friend said, there is also the difficulty of putting on the statute book the precise gallops to which this would apply. The Jockey Club could play an extremely helpful role here as regards exactly how we express that provision. Indeed, we may need to engage in consultation with noble Lords who are interested in this area, as well as with the organisations concerned, before we finally put forward an amendment.
I certainly intend to meet all the anxieties expressed by my noble friend and the noble Baroness. Clearly, there is a safety issue involved that we must address. I hope that the Committee will accept our determination to do so in the best way possible.
Before the noble Lord sits down, I am sure that those who are concerned about the matter will be deeply grateful for what he has just said about this problem. In many cases it has been suggested that after midday or one o'clock it would be perfectly all right for people to roam on the gallops. However, when he is considering the matter, I ask the noble Lord to bear in mind the serious danger of broken glass and discarded tins, which might well be left on the gallops by ramblers. I do so because of the easy way that such litter could cause damage to horse flesh amounting to many tens or hundreds of thousands of pounds.
This amendment is the first in a large and somewhat complex group relating to Schedule 1. I am not quite sure why, but a couple of later amendments could well have also been included in the grouping; namely, Amendments Nos. 39 and 40. However, perhaps we had better leave them where they are so as to avoid any further confusion.
In moving this amendment, I should like to speak also to Amendments Nos. 37, 41 to 48, 54 and 55, which is tabled in the name of the noble Baroness, Lady Miller, as well as to Amendments Nos. 56, 58 to 60 and 63 to 65. Amendment No. 51 is tabled in the name of my noble friend Lord Peel. These amendments are designed to make up serious deficiencies in the schedule relating to excepted land; namely, land excluded from the definition of "access land" and, consequently, not subject to the right of access introduced by the Bill.
The large number of amendments listed in this grouping is a sad reflection of the inadequate state in which the Bill has come to this place. The list of excepted land in Schedule 1 barely scratches the surface as regards the need for careful consideration of the impact of the right of access and of those lands which have to be excluded from that right either for the safety of the public or out of consideration for the interests of the owner and other users. We have just had a classic example of that with regard to the gallops.
There are a number of other examples, such as farming, including the proposal to extend the period of time since the land was ploughed or drilled from 12 months to five years. There is also the matter of curtilage. For safety and security we propose that no land within 50 metres of a dwelling-house should be access land. Public safety points are also included, as is the protection of the environment as well as other commercial concerns.
Amendment No. 37, which relates to land comprising a highway, is a probing amendment on the relationship between highways and access land. Highways provide a right of way rather than a right to open-air recreation. If access land includes highways, there are potential problems. Which legal regime applies, or do both? Could a person exercising access rights be guilty of obstructing the highway? Can people picnic on roads? Can dog-walkers use footpaths across access land without having their dogs on leads? Would a person using a highway be subject to by-laws under Clause 17?
Amendment No. 41 reads:
"Page 48, line 5, at end insert--
(". Land within 50 metres of a dwelling-house.")"
Personal security and privacy can be compromised if people are allowed to wander by homes. The present exceptions for buildings and their curtilage and for gardens are not sufficient. The curtilage is an area of land that relates to a building--commonly, the garden of a house. Although a field would not usually be in the curtilage of a house, it may be next to or immediately behind the walls of a cottage. Keepers' cottages or agricultural workers' houses are often found in open country. The reasons of privacy and security which lead to the present exceptions should be applied in those circumstances.
Amendment No. 42 reads:
"Page 48, line 5, at end insert--
(". Land currently used, or used since 1850, as a cemetery or burial ground.")
We suggest that it is inappropriate for such land to be used for open-air recreation. Admission to cemeteries should be a matter for the keepers of those cemeteries.
Amendment No. 43 reads:
"Page 48, line 5, at end insert--
(". Land used for the purpose of a sports pitch or an athletics track.")"
The Bill excepts golf courses and racecourses. A similar exception should be made for other sporting facilities. Access rights may interfere with sporting events or training, cause damage to pitch or track surfaces or endanger either athletes or the general public. As the test applied is whether land is "wholly or predominantly" open country, pitches and athletics tracks may be included. Commons are used for cricket matches and other games.
Amendment No. 44 reads:
"Page 48, line 5, at end insert--
(". Land being used for the purposes of a film or television studio.")"
Film and television studios often require large open areas. I refer, for example, to the new film studios at Leavesden airfield in Hertfordshire. Filming and preparations would be disturbed by a right of access over that site. Such access might also be dangerous.
I shall not go through the whole list. The examples that I have mentioned are pertinent. I believe that all the amendments that I propose are valid and serious and seek to respect the privacy, security or safety of those concerned. I beg to move.
I support in particular my noble friend's Amendment No. 41 which raises an extremely fundamental issue; namely, the whole question of privacy and security. The provisions will undoubtedly pose problems in certain cases for individuals living in remote rural areas.
A number of dwelling-houses will be situated close to, if not on the edge of, the new access areas. It is important for the Government to consider this problem seriously. I have no intention of reminding the Committee of the difficulties posed by increased crime in rural areas and of trying to find a policeman to deal with such problems. I am sorry to say that one is extremely unlikely to find one.
I believe that as the access provisions in the Bill begin to bite, a number of additional footpaths will be created on access areas. I suggest that almost inevitably footpaths will develop along the edge of access areas. As it is trodden down and more and more people use it, people living in houses next to the newly created footpath could find that they have an unexpected non-registered footpath. That could lead to difficulties such as a decrease in the value of the house. Perhaps more importantly, it could lead to increased crime.
I hope that the Minister will give the problem serious consideration. With great respect to my noble friend, I do not suggest that it is necessarily the right amendment. We need seriously to consider security and access and dwellinghouses on the edge of access areas. The amendment gives us the opportunity to hear what the Government have to say on this important issue.
Amendment No. 55 is a probing amendment to discover whether the wording under "Excepted Land" in paragraph 4 of Schedule 1 is adequate. There appears to be no legal definition of "getting of minerals". The commonly used phrase is the winning and working of minerals and disposal of mineral waste. It is a specific issue in, for example, china clay areas. Many of the workings and spoil heaps will abut open land. The large areas often required for the disposal of mineral waste need to be taken into account. They are not mentioned in the Bill. The wording of the amendment makes it clear to members of the public that there is no access to land for disposal or the area from which the mineral is dug. I welcome the Minister's clarification. I shall then decide what to do.
I note that the Government decided that it would be sensible to make provision within the Bill to exempt land from open access where it is used for gallops and race horse training.
Another pursuit occurs on open land at certain times of the year which could be as potentially dangerous to an individual roaming about as a string of race horses thundering down upon him. When I represented in another place part of the Lake District, I well recall that in winters with a degree of snow local people often set up ski runs in conjunction with a road where they could be given a lift back to the top of the hill. I shall not do so, but I could quote examples where temporary ski lifts operated by tractors were erected. The Committee will be aware of people in some continental ski resorts being hit and seriously injured by people skiing down the mountain or hill.
I have seen a lot of inexpert skiers in my old constituency going down hills at high speed. That is no place for people to be roaming around. I wonder whether the Minister would consider the issue before Report stage and be kind enough to comment today on whether it might be wise to add a provision to exempt from open access land that was used as a ski run when snow was lying on the ground. I can envisage people using the free access granted by the Bill to wander about, probably to watch others indulging in winter sports of one form or another. That would be very dangerous. It would be wise to make an exemption for those relatively rare circumstances.
Once again, I find the grouping very unsatisfactory. We have no fewer than 20 amendments designed to cover a wide range of subjects. They have no common theme except that they are all exclusions from the definition of access land. Even the noble Lord, Lord Glentoran, when proposing them, felt unable to give a justification for each of them. I hope that the Minister will be braver and tell us about them individually, explaining whether each one is acceptable. I venture to hope that on future days on the Bill we shall not be confronted with a hotch-potch of 20 things that have nothing in common.
In such circumstances, one inevitably has to pick. I join the noble Earl, Lord Peel, in drawing attention to Amendment No. 41. Let us consider the example of the house of a shepherd, a keeper or somebody who likes living away from things, which is situated up on open land or moorland. There will obviously be some sort of track leading towards it, which will be a natural route for walkers. It is very likely that the fence round such a house will be only a few metres from the building on one or more sides. The house may have a garden in front or behind, but it will not have 50 metres of garden all round it. The wife of the shepherd in question may find herself alone at home--the problem could even arise at night if the Government persist in their ill-conceived idea of allowing access at night. Allowing people to walk past the house at night, five or 10 metres from the window, is an intolerable burden which would be very frightening and highly undesirable. I sincerely hope that the Government will feel able to accept the amendment as they give us a lucid explanation of the other 19.
On this occasion I do not agree with the noble Viscount, Lord Bledisloe. The amendments have a common theme. As he identified, they would all restrict the areas to which access rights would be granted. My starting point is to oppose all of them. Some of them may have more reasonable arguments behind them, but taking all of them together would restrict the areas to which access was granted. I suspect that that is the motivation behind many of them.
I am afraid that I am going to take them one by one--sorry about that. Amendment No. 35 would except "any developed land". That is unnecessary. Paragraph 2 of the schedule already excepts any land,
"covered by buildings or the curtilage of such land".
The definition of "building" in paragraph 11 is very wide.
However, the definition of "development" in the Town and Country Planning Act is wider still and includes issues such as the making of any material change in the use of a building or other land. If the amendment followed that definition it would mean that the public could be denied access simply because of a change of use for which planning permission had been given. I do not believe that that was the intention but it would be the effect. I believe that the real safeguard in this area is that buildings are already covered.
Amendment No. 37 would except land comprising a highway. However, the public already have rights of passage on foot on all public highways except motorways, which I do not suppose feature too often on access land. Those rights are not affected by Part I of the Bill. Therefore, it would be somewhat nonsensical to except highways.
I accept that real anxiety about buildings exists in relation to Amendment No. 41, as referred to by the noble Earl, Lord Peel, and the noble Viscount, Lord Bledisloe. However, Schedule 1 already excepts buildings and their curtilage. It also excepts gardens and parkland, much of which will be substantially larger than the 50-metre requirement in the amendment. An exclusion zone based on 50 metres would be arbitrary and effectively would mean that in many locations the public could not pass that building. Therefore, the essential means of access to open country would be excluded by having a 50-metre umbra around any building which itself was exempted by the buildings requirement. Therefore, I believe that such an exclusion is excessive. The curtilage requirements and those which relate to gardens will protect substantially isolated dwellings from any right of access to come close to that house.
Amendments Nos. 43, 43, 45, 46 and 63 exempt a number of areas such as burial grounds, sports pitches, waste processing sites and quarries which are being backfilled. Such instances would arise relatively seldom on access land. However, if they do occur--and I make this point in relation to many of the amendments--there is a process for dealing with them: that is, by application to the Countryside Agency for restrictions or closures, either temporary or permanent. I believe that that, rather than a blanket exclusion on the face of the Bill, should apply in relation to most of the items covered by those amendments.
I also say to the noble Lord, Lord Jopling, that if do-it-yourself ski runs were being erected all over his former constituency, I believe that, likewise, application for restriction could be made to the Countryside Agency either on specific occasions or when snow was falling. Therefore, I believe that that item is covered without providing a blanket exemption which addresses all those issues.
Amendment No. 55 in the name of the noble Baroness, Lady Miller of Chilthorne Domer, refers to mineral works. Again, such land is unlikely to be mapped on open country. However, the noble Baroness raised a specific point in relation to the use of the terminology "winning and working". That has been used in previous legislation and may be more appropriate than the current wording. Perhaps I may take away that matter to consider the implications. It may be sensible to use the noble Baroness's suggested wording.
Amendment No. 44 refers to TV and film studios. By and large, TV and film studios qualify as buildings. I believe that we are pushing matters somewhat here. Walkers must not interfere with the lawful activities of others. Therefore, if a location shoot is taking place lawfully on land, walkers must not interfere with it. Therefore, I believe that even temporary filming is covered. Of course, the landlord can again either use his discretion within the 28 days or apply for an exemption in the normal way.
Amendment No. 47 relates to educational and medical institutions. Again, most of those are buildings and we believe that such land will largely be covered by the legislation relating to parks and gardens. I do not believe that there are many other items which do not fall under that specification.
Amendment No. 48 was dealt with in part at an earlier stage. It excepts streams and other watercourses. Again, use of those streams and watercourses for activities in the water is not covered by the access rights in any event. But to except land because there was a stream across it would seriously confine access to other bits of land.
The noble Earl, Lord Peel, has tabled Amendment No. 51, although I do not believe that he spoke to it. That relates to small areas of woodland. It will be a matter of discretion for the countryside bodies whether they exclude such pockets of woodland. For example, small semi-natural clusters of oak or rowan can be found on some areas of high moor. They are usually unfenced and it would be illogical to exclude them from open country. On the other hand, a fenced forestry plantation would be most unlikely to be seen as part of open countryside. Therefore, some discretion must be left to the countryside agencies in defining those areas which would be excepted.
In a sense, it also addresses the threshold between heath and woodland, but where there is an enclosure it would seem that quite frequently there would be an exclusion.
Amendment No. 54 deals with some obtuse point about plural or singular. That makes no significant difference to the approach. A distinction is sought to be made between the curtilage of a building and the curtilage of land covered by a building. Our advice is that there is practically no difference between those two expressions and that in this case at least, if not everywhere, the Bill appears to be grammatically correct. So we do not support the effect of the second part of Amendment No. 54 nor Amendment No. 60 which deals with the same point.
We then go on to heliports. An aerodrome is included in exceptions. Heliports are subsumed within aerodromes, I am reliably informed. Therefore, that is covered already.
Amendment No. 59 would remove the restriction that the exception of land under paragraph 7 must not fall within any of the preceding paragraphs. Again, Amendment No. 59 does not seem to have any practical effect since it would simply allow land to be excepted both under paragraph 7 and under any of the other paragraphs. Therefore, that is not needed.
As regards Amendment No. 64, paragraph 12 provides that land cannot be treated as excepted land simply by undertaking on it one of the activities listed in the schedule if planning consent should have been obtained but has not been obtained. If we removed paragraph 12(1), as is proposed by the amendment, individuals' rights of access would be reduced because of the unlawful behaviour of others in not obtaining planning permission. On the face of it, that seems to be inequitable and I should not be prepared to accept that amendment.
Finally, the Committee may be grateful to hear, Amendment No. 65 would clarify that access would not be excluded from land covered by electricity transmission lines. We do not believe that electricity transmission lines or telephone wires "cover" the land as such and therefore, the amendment is not needed.
All the amendments seek to extend the area of land excepted and therefore to restrict the right of access. In all cases, I do not believe that they are wholly justified, although some of the anxieties behind the amendments are real. At this stage, I am not prepared to accept any of the amendments. I have said that I will look again at the wording of one or two of the amendments. But in general, I ask Members of the Committee not to pursue the amendments.
Before the Minister sits down, perhaps he will explain in a little more detail what is meant on the face of the Bill by "aerodrome". We all understand what is meant when one is talking about a military airfield as we do in relation to a civil aviation airfield for use by chartered or scheduled flights.
But when the Minister was dealing with that matter in his remarks, my mind went to an example of a place I know well which is the Yorkshire Gliding Club which is situated, and has been to my certain knowledge for 60 or 70 years, on the top of Sutton Bank between Thirsk and Helmsley. A great deal of gliding takes place there. If one drives up the road at Sutton Bank, quite often one can see eight or 10 gliders in the sky. They are towed off by a light, single-engined aircraft which, as far as I know, is kept on the site. A public footpath goes round the edge of the place where the gliders and aircraft take off.
I suspect that under the terms of the Bill that land would be open for public access. I wonder whether the Minister could explain in detail what is meant by "aerodrome". Does it include any place which is used particularly for gliding where maybe only one aircraft is permanently based, or even sometimes temporarily based, that comes in and tows gliders off and where gliders are landing and taking off in large numbers, particularly at weekends? It really would be crazy if people were allowed to roam over such a place. I realise that the Minister may not be able to give me a precise answer now. However, I believe the point is worth considering. A site such as that on the top of Sutton Bank should come within the definition of an aerodrome, and I believe we should ensure that it does.
Can the Minister clarify whether that would include farm strips? There are a number where planes take off. What does the Minister understand by the definition of an unlicensed aerodrome, such as an airstrip or a glider site? Would it just be the runway or would it be further out at either end of the runway, in other words, 50 yards either side? How close could people come? These questions may seem to be unimportant. However, if somebody was flying a kite or came too close, they could well be injured or cause an accident.
The term "aerodrome" is widely used in civil aviation legislation. The normal definition is in the 1982 Act. I shall refer to farm sites in a moment, but all issues which the noble Lord, Lord Jopling, raised, would be covered by it. It refers to any area of land or water designed, equipped, set apart or commonly used to afford facilities for the landing and departure of aircraft and includes any area or space designed, equipped or set apart to afford facilities for the landing and departure of aircraft.
Before the noble Lord inquires what is meant by an aircraft, that is helpfully covered, as he may know, in the Air Force Act 1955. It covers all machines for flying, whether by mechanical means or not, which must include gliders. It also includes balloons. I believe that any space which gets you in the air and down again is covered by the exception of aerodromes. I suspect that farm sites would be excluded anyway as part of the enclosed farmland. It may be that the odd individual helicopter pad which is used once every year at Christmas might not fall within that definition. However, I suspect that that is in somebody's garden or park and therefore would be excluded that way. I do not believe that this is a serious problem in so far as it is not already provided for in the Bill.
The Minister has already given me his comments on Amendment No. 51 tabled in my name, so I shall not move that amendment. Perhaps I may return to a comment made by the Minister when he summarised the list of amendments. He said that the one thing they had in common was that they were designed to restrict more access. That implied to me that that was the sole reason why the amendments were tabled. That simply is not the case.
The Minister's response to Amendment No. 41 and the question of security was almost cavalier. But this is an extremely serious problem. As the noble Viscount, Lord Bledisloe, pointed out, some people's houses will back on to the access areas. They will feel threatened and feel that their lives are being undermined by this legislation.
I accept that Amendment No. 34 is not necessarily the right way to deal with the problem, but I hope that the Government will look at this whole question more seriously. I have no doubt that my noble friend will withdraw his amendment, but I hope that we can come back to this matter at a later stage. The whole question of security is extremely important and the Government have not considered it to be so in any way, shape or form.
I do not say that it was the sole motivation for introducing these amendments. But all these amendments have the same effect and, taken in combination, they would provide a substantial restriction on the right of access. Therefore in part I question the motivation for the tabling of some of them.
I indicated specifically in relation to Amendment No. 34 that anxieties exist in relation to security and possible criminal damage from the extension of access in areas close to buildings and particularly in relation to dwellings. But we must be sensible about this. The 50-metre exclusion zone advocated by the noble Earl will give people no more comfort than that already provided in the Act in relation to curtilege, gardens and parks, all of which are already excluded.
Also, we must recognise that almost everybody lives within 50 metres of a right of way, usually a pavement, both in isolated and urban areas, where I suspect the likelihood of criminal attack is higher than in the country areas. We should not make too much of this. Nevertheless, I accept that anxiety exists. I believe that the provisions of the Bill already address some of that anxiety. So let us not exaggerate it and say that it justifies a serious incursion into the right of access that the Bill will provide.
What concerns me, and this point has been touched on on numerous occasions, is that the Government are saying that they perceive that there may be a problem, but that they will leave it up to the Countryside Agency to interpret it. That is not good enough. I hope that the Government will give us a firm commitment as to how they will deal with the problem. Simply leaving it up to their agency is not the right way forward.
I do not accept most of what the Minister said. This group of amendments would not lead to a serious reduction in access in the total scale of things. The reasons behind the tabling of the amendments were serious and sensible. To have old or active cemeteries as access land is crazy. The amendments will not provide a serious incursion into the access situation by seeking to protect sports fields and sports grounds on a large scale. The various other parts of the amendments involve people's safety or, on occasion, give advice to the Government on perhaps a legally better way of wording the schedule. I assure the Minister that the amendments are serious. If we took the land covered by them as a percentage of the total land to which access would become available, it would not be a serious restriction.
However, one or two points are particularly serious; that is, the points relating to the glider, the helicopter and the aeroplane situation and to people's privacy. Amendment No. 41 addresses an extremely serious issue. Many people throughout the country who live in remote places will feel seriously vulnerable, particularly where their home suddenly becomes a right of way. I believe that if the Minister's garden, a peaceful corner which he had had for many years, were made into a right of way, or something close to it, he would be unhappy. I shall return to the privacy and security of country people's cottages and houses at the next stage.
I ask the Government to take the amendments seriously and to come forward with better suggestions. I shall wait until Report stage, because we take seriously the privacy issue dealt with in Amendment No. 41. I hope that in his turn the Minister will be good enough to take me seriously and will come forward with an amendment at Report stage. In the meantime, I beg leave to withdraw the amendment.
I hope that the next set of amendments I propose will not fall into the category of those which the Government believe to be unnecessary. If they do, it only reinforces what the general public are beginning to believe about the Government; that they do not understand the countryside and nor do they want to. Therefore, although the hour is late, I hope that the Minister will take them seriously.
Amendment No. 36 refers to land in Wales known as coed cae or ffryd land. I hope that my pronunciation is near the mark. Last weekend I was speaking in the furthest corner of West Wales, five miles from Fishguard, so I should have had a chance to practice. The amendment was raised at Second Reading in another place (col. 783) by Richard Livsey, Liberal Democrat Member of Parliament for Brecon and Radnorshire. In parts of Wales, there is land between open hills and the enclosed land which in South Wales is known as coed cae and in North Wales as ffryd land. Try saying it twice--that really is a risk! Usually lambs are put there in the spring before going up on the hills. Following representation by commoners, the designation of the pilot map in the upper Swansea valley was amended to exclude that land. That land should be excepted.
Amendment No. 38 relates to a serious aspect of farming land; that which is subject to the set-aside scheme. I am sure that the Minister will have been briefed that land can be set aside for more than one year, which is relevant here.
Amendment No. 49 provides that,
"Grassland which at any time is subjected to the normal processes of husbandry", should also be excepted. That is important for the same reason. As regards farmers and land managers, grassland is not used only for grazing animals but hay and silage is taken from it. Therefore, it is an important part of the process.
Amendment No. 50 proposes the removal of the time limit of "twelve months" and the insertion of "five years". The reason for that is that "cultivated land" should be broadened to exceed the current limitation of 12 months. The Government have amended the original Bill to seek to define the term "cultivated land", for which we are grateful. The result is a definition which excepts only land that has been cultivated within the previous 12 months. But as Members sitting behind me and, I suspect, on Benches opposite will know, cultivated land rotates, which is why we propose five years.
However, intensely managed grassland which is improved or semi-improved by being cultivated and re-seeded on a regular basis every few years, but not necessarily every year, would not be excepted land as a result of this definition. Many livestock systems are subject to three or even five-year leys. Newly-sown grass crops do not generally reach peak yields until the third year. The Government must provide clear assurances that any improved grassland, whether in improved permanent pasture or short-term leys, will not be mapped as access land. To extend the definition of cultivated land to include longer leys managed over rotations of up to five years will assist, and this amendment aims to achieve that.
In their original consultation paper the Government stated that the new right would not extend to land used for agriculture other than extensive grazing. However, there is no mention of livestock in relation to any types of land affected by the Bill or excepted from it under Schedule 1. The Government appear to have ignored the precedent of the National Parks and Access to the Countryside Act 1949 under which excepted land includes agricultural land other than such land which is agricultural land by reason only that it affords rough grazing for livestock. Will the Government consider building that helpful precedent into the current Bill? I beg to move.
I support my noble friend's amendment. It is clear from paragraph 1 of the schedule, which refers to,
"Land on which the soil is being, or has at any time within the previous twelve months been, disturbed by any ploughing", that the provision is concerned only with arable crops and does not take into account grassland. Grassland is the most important land under consideration in this amendment. Presumably, most of the land that is subject to access arrangements will be hill land where farmers have reclaimed grassland at great expense and hardship. That land, which is probably permanent pasture, is cultivated land within the meaning of the schedule but is not included in the schedule. My noble friend's amendments will cover it. I believe that the period should be longer than 12 months--even longer than five years. The schedule should include permanent grassland. Hill land is usually cultivated permanent grassland. It would be a serious disservice to the farming community at this very difficult time if its land was part of the access arrangements and subject to the right to roam.
I hope that the Minister will accept the amendment. I understand that in the other place the Minister said that there was an intention to include land used for hay and silage-making, but that is still not covered in the Bill as it now stands. Perhaps we may have some reassurance that that matter will be covered.
I apologise for not having spoken earlier to Amendment No. 52 which is part of the same group. Amendment No. 52 deals with the particular point just mentioned by my noble friend. It is concerned with,
"Grassland which is improved or semi-improved including grassland used to produce hay, haylage or silage, or grassland used for the intensive grazing of livestock".
It is vital to livestock management that sufficient high quality or high-yielding grass crops are grown in order to make a livestock enterprise profitable. This cannot be readily accomplished if the land in question is subject to high levels of access. The definition of cultivated land is insufficient and does not fully take into consideration improved or semi-improved grassland. It is vital to include as excepted land any land which is improved or semi-improved grassland. As my noble friend said, the Minister in another place said as much at Report stage at col. 809. This assurance should be written into the Bill. The Bill must make it clear that only "mountain, moor, heath and down" will be mapped as access land, not improved or semi-improved grassland, whether used for grazing or for the production of fodder crops. On that aspect, I would also draw the Minister's attention to the fact that if it is not excluded the risk is run that dog-fouling will occur, which is something that is neither acceptable nor desirable when fodder crops, hay and silage, are being taken.
The Minister stated in Standing Committee B on 6th April 2000 (at col. 170) that he did not expect rotation leys to be mapped as open country. He has also indicated that land which has been improved in some way, or land which is used more intensively than rough grazing, should not be mapped as open country. Intensive or semi-intensive grasslands are also not expected to be mapped as mountain, moor, heath or down. Rather than to rely on the simple or various assurances, the Government should amend the Bill to improve the clarity for the Countryside Agency and the CCW in setting about their mapping task and ensuring clarity for owners and users alike. I apologise for not speaking to that amendment before.
I should like to support my noble friend Lady Byford on Amendments Nos. 49 and 52. I think that the Minister would be anxious to learn that on the grounds of safety there are concerns. These grasslands use husbandry techniques which include fertiliser and herbicide sprays. It is not appropriate for dogs or humans to go on those grounds after these techniques have been used. There is no way of knowing within an hour or so that those techniques have been used. Not only will certain fertiliser spays burn the feet of dogs, but it would give rise to problems for a farmer if, when conducting such an operation on his field, he were to find people walking across it being intoxicated perhaps with the sprays. It is very difficult for a farmer of limited means on a small farm if rubbish is left by walkers. Only this weekend I picked up off footpaths two or three cans that were certainly not there last week. Such cans cause considerable damage to silage machinery.
I also have the same concerns over grassland which should be down for one year or five years. It could be said that farmers should perhaps go to short-term leys rather than long-term leys in order to keep those lands from being excluded lands. If that were the case, it would deny the wildlife considerable benefit from the longer leys.
I have a certain amount of sympathy with some of the arguments advanced by noble Lords opposite. But for a long time some of us have argued that we could achieve the same benefit in the hill and rural areas of parts of these islands if agricultural support was reasonably generous but based on the principle of acreage rather than headage, because in some areas there is over-production as farmers try to maintain living standards and produce more animals for meat than can be sold. In order to sustain life in areas like that there is no point in over-production. There is a point in keeping farmers there. It may be that the economy of those particular areas would benefit if rather less grass was produced and there was rather more grazing to enable the character of the area to be retained, thus avoiding all the disadvantages of over-production, while at the same time providing the income which is necessary to retain the rural population.
The noble Lord, Lord Hardy, said that he prefers rough grazing to modern grassland managed crops. I have to say to him respectfully, because he knows a great deal about country matters, that in the present economic circumstances surrounding agriculture in the uplands what he is suggesting is a formula for having unfarmed land and land going to scrub. I am sure that he does not want that very unattractive prospect.
I support my noble friend Lady Byford, particularly on Amendment No. 50. I say as a former student of the great grassland improver, Professor Martin Jones, who did so much of his work at Aberystwyth and at Newcastle, where he taught me, that I could imagine him turning in his grave at the thought that there should be provisions in a Bill giving the green light to one year leys in our uplands rather than leys for three, five or even more years. I hesitate to give the Committee a lecture on agricultural practices, but I shall do so. A single year ley is used only in arable areas where corn crops are undersown with a one-year ley to grow grass and clovers in the following year to be turned usually into hay or silage. It is in the upland areas where long-term leys are very much more the practice.
I referred a few moments ago to Newcastle. I feel that I must draw attention to the work that has been done over a great many years at the experimental farm of Newcastle University, Cockle Park, and the celebrated Cockle Park mixture. It is a seed mixture of three or five year leys which in the early years of the last century did a huge amount to improve the grassland management of our upland areas and make it possible for farmers to farm those upland areas with some degree of prosperity. Single year leys do not happen in the upland areas. Where a farmer wants to improve the grassland--he ploughs it out or directly seeds it--he will do it with a three or five-year ley. It is nonsense to suggest that only a one-year ley should be the credential for having exempted land. I can provide the Minister with reams of scientific agricultural research to bear out the point I am seeking to make and which was made so ably by my noble friend when she spoke to Amendment No. 50. I hope passionately that the Minister understands the point and will agree to change the Bill to extend the 12 month period to five years.
Our Amendment No. 53 is grouped with these amendments. The first part of the amendment seeks to clarify the extent of land classified as cultivated. The amendment seeks to include among the cultivated land that grassland which is reseeded on a greater infrequency than the five years referred to in Amendment No. 50. The inclusion of the amendment would be of particular benefit to smallholders. The Bill seems to be orientated towards estates and larger farms. Disturbance of livestock will potentially have a greater effect on the few animals held on a smallholding than on a larger unit.
The second part of the amendment seeks to include in cultivated land that land which is in set-aside at the point of mapping. It is hoped that the fact that set-aside usually takes place for only one year and is officially recorded as such will prevent any claim that such land is open country and hence access land. The amendment will ensure that that is the case.
I rise to support Amendment No. 52 tabled by my noble friend, or, failing that, Amendment No. 50.
I should like to be able to declare an interest as I am a farmer with a certain amount of land over 600 metres, a great deal of which would be called "access land" under the provisions of the Bill. However, I am not able to declare an interest because that land is in Scotland. Nevertheless, I maintain a continuing interest in the question of how access to the countryside is managed.
In an area like mine, improved grassland, in particular that under five years old, tends to be used for hay, silage or intensive grazing. As my noble friend Lord Willoughby de Broke explained, people tramping through such land will inhibit growth by introducing extra tracks and could even contribute to soil contamination. When such land is situated in the neighbourhood of mountain moorland and rough grazing, sheep are often put to the ram or held for lambing there. Although I can follow the arguments put forward by the noble Lord, Lord Hardy of Wath, I should point out that if the balance between rough ground and grass is correct, this enables fewer sheep to produce more lambs. That is one way of reducing the stocking rate on the rough ground itself.
When considering this issue, I have found that it can be useful to make a comparison with Norway. An Act granting access was introduced there in 1957. It is still extant and presumably has been found to work reasonably satisfactorily. In defining the land to which access is not granted during the summer months, the law states:
"The following are considered equivalent to cultivated land for the purposes of this Act:... Tilled fields, hay meadows or cultivated pasture".
It goes on to list,
"young plantations and similar areas where public access would unduly hinder the owner or user".
When considering definitions of area, perhaps noble Lords will allow me to return to the Norwegian case and demonstrate how it does not prove to be a good comparison. In Norway, the total area of land used for agriculture or commercial forestry comprises 26.5 per cent of the whole country. If a certain amount is deducted for urban use, some 65 per cent of Norwegian land is not managed in any way and therefore fits much better the definition of open ground.
However, in this country it seems that we are trying to redefine open ground from what it might in the first instance appear to be. In the United Kingdom, registered agricultural holdings plus productive forestry account for 70 per cent of the land. Again, allowing for urban use, the remainder of the country which comprises water and unmanaged ground amounts to only 12 per cent of the total.
"It is hard to imagine how people walking across uncultivated land, away from buildings, would generally interfere with others who were using the land".--[Official Report, Commons, 13/6/00; col. 888.]
However, I am afraid that that is something which I do not find hard to imagine. Any hill shepherd could confirm that there are times when, among hill breeds of sheep--those sheep which will be most affected by the access provisions--disturbance is a known factor in reducing productivity. Low-ground breeds generally tend to be lambed indoors and are thus less likely to be affected. However, any stranger appearing within 50 yards of the hill breeds will cause the ewes to bunch together and move away. The least disturbance is caused when strangers remain on an established footpath.
During discussions I had last July with the head of the Redesdale Hill Farm Research Centre near Otterburn, I heard that within the past year, one of its staff put in a bid to research this subject, but was refused a grant. Here, I am returning, but from a slightly different angle, to the point made earlier by the noble Earl, Lord Peel, about how much research has been carried out into the effects of this increased access. Considering the importance that the Government seem to attach to the Bill, it seems to me that this is rather short-sighted.
In the discussion I had with this gentleman, the four most sensitive periods were highlighted. These of course easily exceed the 28 days presently allowed for the managers of land under the Bill. For three weeks when the ewes are put to the ram and for a couple of weeks thereafter, with any prolonged disturbance the normal expectation of 5 per cent of ewes being barren could become 20 to 30 per cent. Two weeks before lambing, any chasing with an errant dog could result in another 10 per cent aborting. In the four weeks of lambing, complications, mismothering, drowning and abandoned lambs are the issues that worry the farmer and the shepherd. The final point is that with lambs grazing on aftermaths or late season grass for fattening it can be noticed that they do not thrive for a couple of days after a general disturbance.
Farmers could suffer a substantial drop in income if numbers of people wander from defined pathways at these sensitive times. At a time when farmers are being asked to farm to ever higher standards and to compete in world markets, there will be inevitable production costs.
I cannot leave my noble friend Lady Byford alone in coed cae or ffryd land in Amendment No. 36, admirably though she pronounced it. This is an important element in Welsh upland agriculture. It is the land in the foothills and on the slopes; it is usually walled or fenced and is extremely valuable to the farmer because it is used to hold sheep and livestock that have been on the mountain during the severe winter months.
The land does not look very cultivated to the visitor's eye. The farmer has a constant battle to keep the lambs free from bracken, gorse and other predatory fauna. Nevertheless, it is extremely worth his while to do so because the land is used for stock during the winter months. I should have thought that the argument for this being excepted land is very strong indeed. Although it is not cultivated in the most obvious sense of the term, it is land that is hard fought for by the farmer to retain its usefulness, and that usefulness is certainly proven as part of the upland agriculture.
I do not want to interfere too much in matters relating to Wales, but it seems to me that if there is a major problem with the coed cae land, we must ask why it is being mapped as access land in the first place. If there is a widespread problem and this land should not be walked on, there will be huge confusion if it is mapped as access land, put on the access maps and then declared as excepted land where people cannot walk. If the problem is as it has been reported, the answer is that it should not be mapped as access land in the first place. It is not a question of it being excepted land; it should not be marked as access land in the first place. That seems to me to be the position.
In my experience, the real problem in much of the Welsh uplands, particularly in mid-Wales, is that there are no rights of way from the valleys to the open country up on the ridges. That problem needs to be tackled. Creating routes onto the uplands obviously involves taking them through farmland and presumably through the higher coed cae land. That is the way in which it seems to me the problem should be tackled.
That leads me to the wider problem that I have with these amendments; namely, that the difficulty is greatly exaggerated if the mapping operation goes as it ought to and inevitably will. The suggestion seems to be that any permanent pasture, any long leys in the uplands, will first of all be mapped as access land and will, or will not, be accepted as access land.
As I understand it--but perhaps I have misunderstood and shall be told I am wrong--the whole purpose under the Bill of excepted land is to provide a means of preventing people walking on land which has been mapped as access land but for some reason, whether temporary or long-term, it is not desirable that people should walk on it for reasons of conservation or whatever.
The land in the uplands that is referred to is in the gritstone Pennines--it is the upland pastures. By and large, these are enclosed, often in small fields. That is true in many other upland areas. Typically the farms might consist of between 40 and 60 acres, not hectares. The fields are used for various types of grass. Traditionally, most were permanent pasture and upland hay meadows. They will not have been re-seeded for a long time. They might be fertilised and drained from time to time and the thistles might be dug out, but that is all. They were permanent grassland. As the noble Lord, Lord Jopling, said, that has changed in recent years as they have been turned into three-year or five-year leys. Sometimes the period is longer. The old vegetation is scraped off and the land is re-seeded, and it might be 10 years before anything else is done to it, because these are not prosperous farms. These are fields on farms and are clearly within the enclosed farms (not on the moor) where grass is grown. There are still some hay meadows, but more often the grass is cut for silage.
The noble Earl, Lord Peel, spoke earlier about lapwings. In the mid-Pennines there has been a catastrophic drop in lapwings of some 75 or 80 per cent. It has nothing to do with moorland; it has to do with the improved grassland farming techniques which have removed the wet corners of the field, the areas where rushes grew and where the lapwings used to build their nest. The birds have gone now, because farming has gone right to the corners of the fields as a result of problems such as subsidies for sheep being paid on headage.
Surely all these areas, whether they are still upland hay meadows, permanent pasture or modern fields of grass grown for a combination of silage and pasture, will not be mapped as access land in the first place. They are not heath; they are not moor; they are not mountain; they are not common land. So why would they be mapped as access land? This is enclosed farmland where the crop happens to be grass. That is the situation.
If you look around these areas, the whole landscape is green. It is a much brighter green than it used to be with these modern techniques, but it is green and the crop is grass. Surely such areas will not be mapped as access land in the first place. Therefore, the question of them being "excepted land" does not apply. The description of "excepted land" only applies after it has been mapped. That seems to me to be the position. If the Minister tells me that I am wrong, I shall join the rebellion.
The only problem over grass areas as regards "excepted land" is where areas of moorland or heath are being taken, improved and turned into grassland. There is a problem when that happens because grass is a crop like any other. It seems to me that the definition of "excepted land" needs considering most carefully in relation to grass, but that applies only to quite a small number of areas. Therefore,unless I am completely wrong about the sort of area that will be mapped in the first place, it is a great exaggeration to suggest that there is a huge problem here. Perhaps the Minister will be able to confirm whether I am right or wrong.
I rather followed the line of the noble Lord, Lord Greaves, to begin with but then I asked myself, "If both mine and his reasoning are right, what is the point of paragraph 1 in Part I of the schedule?" Surely the Government would not have inserted the reference to the "previous twelve months" if the situation was not different from what the noble Lord just argued. It is because paragraph 1 appears in the schedule that one has then to consider the reasons why the Government included it. We must ensure that the very land we are talking about is not covered.
Perhaps I may begin by assuring the Committee that the Government take such issues extremely seriously. We gave a great deal of thought in the structure of the Bill to the issue of cultivated land. We also considered how we should use the mapping process and the concept of "excepted land" and took that into account in the way in which the Bill is framed. After a very thoughtful and careful debate, I can say with great relief how much I agree with the noble Lord, Lord Greaves. He has not got it wrong; indeed, he has got the structure of the Bill exactly right and described it with a great deal more personal knowledge than that to which I can aspire. Nevertheless, I hope that both he and the Committee will permit me to set out the way in which this matter is dealt with in the Bill.
Schedule 1 to the Bill sets out a short list of types of land use that are excepted from the right of access. It is the responsibility of the countryside bodies to map open country and registered common land. Those are the two fundamental elements in this construct. We expect that some areas of land will rightly qualify as predominantly open country--that is, mountain, moor, heath and down--even though the use of some of that land may be incompatible with the public right of access. I give way.
I thank the noble Lord for giving way. We find ourselves returning to definitions. Can the noble Lord define "open land"? Is it land without a wall, land with a fence, land without a gate, or what?
I do not believe that it would be desirable or welcome if I were to repeat the arguments that have already been aired about definition. If I may be allowed, the point that I am trying to make is about the nature of the mapping process. That is the essential way in which we must look at the concept of "excepted land". If we introduced the kind of amendments included in this group, it would be utterly counter-productive to Schedule 1. It would result in an unmanageable and obscure list of land uses that few would be able to remember--indeed, some in Wales that few would be able to pronounce--and fewer still could be relied on to interpret them accurately when out in the countryside.
I turn first to Amendments Nos. 49 and 52. Paragraph 1 of Schedule 1 provides that land will be excepted if soil has been disturbed within the previous 12 months by ploughing or drilling or similar agricultural or forestry activities for the purposes of planting or sowing crops or trees. The noble Earl, Lord Caithness, seems to think that is out of keeping with the rest of the categories of excepted land, but, of course, crops include grass grown for hay or silage. It is intended that land excepted from the right of access by virtue of paragraph 1 will be reasonably clearly identifiable. I believe that that has been the case. I do not think that anyone has challenged that.
It may appear that the definition of cultivated land in paragraph 1 is drawn narrowly. There is good reason for that. The exception by paragraph 1 of cultivated land is not the primary mechanism by which improved or semi-improved farmland is itself excluded from statutory right. It is the mapping process, undertaken by the countryside bodies, which will identify what is and is not open country and registered common land. That is the point that the noble Lord, Lord Greaves, made.
There is provision for an extensive framework of consultation and appeals on maps. Farmers and landowners and the public will be involved in the drawing up of maps. There will be an opportunity to comment on the way in which land has been included or excluded from the draft maps produced by the countryside bodies. The mapping of open country will be a highly focused task. It will need to look at individual fields in many areas in order to identify and exclude land which is not semi-natural, unimproved grazing.
As I said, landowners and others with an interest in land will be able, if necessary, to lodge appeals against provisional maps. Landowners will be able to object to the inclusion in maps of improved land such as the grasslands identified in Amendments Nos. 49 and 52 or the land regularly cultivated in Amendment No. 53--I shall return to Amendment No. 53 in a moment--which cannot be considered to be "open country".
Many noble Lords have expressed concern about access to fields used to take cuts of silage or hay. I acknowledge that could cause damage. Such land is unlikely to conform to the description of,
"mountain, moor, heath or down"-- which are essentially semi-natural environments which have not been recently improved or cultivated--and farmers will have every opportunity to see that it is excluded from the maps.
It is even less likely that set-aside land--here I come back to Amendments Nos. 53 and 38--which by definition is land which has previously been in arable production--will be mapped as open country. I can give the noble Earl, Lord Mar and Kellie, the assurance he needs that that will not be a significant problem.
However, we recognise that some farmers may seek to cultivate or improve their land after maps of open country have been drawn up and confirmed. Part I of the Bill will not interfere with landowners' freedom to use their land as they think fit within the existing constraints.
The function of paragraph 1 is in effect to draw a line around land which, following ploughing or other disturbance of the soil for the purpose of growing crops, is fundamentally incompatible with continued public access and can be reasonably clearly identified as such.
The fact that land has been ploughed or otherwise cultivated within the past year will mean that the exception from the right of access will be reasonably apparent to the casual walker. That is crucial to avoid unnecessary confusion and argument about whether right of access is exercisable over any particular parcel of land. That is poles apart from expecting a walker to make fine distinctions between improved and unimproved pasture.
I have not referred to Amendment No. 36 which concerns coed cae and ffryd land in Wales. Ffryd and coed cae vary in character across Wales. We do not believe that it would be right to make a blanket exclusion for all land of that kind. That should be considered on its merits in the mapping process on the same terms as I have described for any land which may be improved or semi-improved grassland when maps of open country are drawn up. It is for the Countryside Council for Wales to assess whether coed cae or ffryd land is mountain, moor, heath or down. Farmers and landowners will be able to object if they disagree with the classification of open country.
I turn to Amendment No. 50. I acknowledge that after conclusive maps of open country and registered open land have been published, land use may change in such a way that land does not fall within any of the exceptions in Schedule 1 but where access may pose problems for effective agricultural or silvicultural production.
I do not think that the concerns of the noble Duke, the Duke of Montrose, about lambing arise in the way that the Bill is drafted. Most open country will be upland from which ewes are brought down for lambing. Where lambing takes place on open country, we have already announced plans to review the restrictions on dogs--the animals most likely to cause disturbance to ewes lambing. It is also open to farmers to apply for directions to restrict access if necessary. Of course there is the general 28-day restriction. I recognise that the noble Duke does not believe that to be adequate for the purpose.
These matters can be addressed in the course of the mapping process. That is why I am--perhaps at inordinate length--pointing out the importance of the mapping process in the Bill as constructed. There are examples of problems. For example, a sunny south-facing downland slope may be planted with vines or other crops which do not need to be sown afresh every year. If land is planted with multi-annual crops, the exception for cultivated land in paragraph 1 will cease after the first year. But, again, the farmer can apply to the relevant authority for a direction restricting or excluding access where he can show that that direction will be necessary for the purposes of the management of the land. We do not think that the planting of multi-annual crops will happen frequently, if at all, on open country.
The Minister says that the farmer can object to particular areas being mapped. Hundreds of farmers will see no reason why areas such as ffryd land, coed cae, lands used for lambing purposes, and so on, should ever be declared open country. To them it is not open in any sense.
They will have the opportunity to put that case in the course of the mapping process. The fundamental point I seek to make is that this is a highly focused task. It is very difficult indeed to produce definitions on the face of a Bill. Amendments are proposed to the definitions of excepted land. The mapping process will have to consider individual parcels of land and individual fields in different parts of the country. That process will provide the opportunity to farmers to do exactly what the noble Lord, Lord Roberts, seeks.
My concern is that the Government have the emphasis wrong. Instead of making clear the land for which the presumption is that it should not be available for access, the Government are providing for the mapping of a great deal of land and then making exceptions. That will cause unnecessary problems with the rural community. It will increase the suspicion of rural people that the Government do not understand their problems. That is the warning I give the Minister.
I hear that warning. I do not deny that that assertion has a good deal of resonance in the countryside, but anybody who looks objectively at the Bill cannot sustain that charge.
We need to achieve a reasonable level of certainty about the right of access. The maps of open country will provide that certainty. If we were to go further and allow for improved or semi-improved grasslands to be excepted under Schedule 1, as Amendments Nos. 49 and 52 would provide, or for land to remain excepted for five years after cultivation, as Amendment No. 50 would provide, or for substantial areas of land in Wales to be excepted without reference to their particular characteristics, as Amendment No. 36 would provide, we would severely limit the value of the maps and call into question the fundamental operation of the right of access in practice. That would mean that, notwithstanding the inclusion of land on maps of open country, every walker would need to consider for himself whether that parcel of land was improved or semi-improved. That would place an impossible burden on the public, greatly increasing the risks of confusion and argument about where people could go.
That is why we need the greater certainty that the mapping process will bring. The mapping process allows such issues to be addressed before conclusive maps are published, avoiding confrontation between walkers and farmers on the ground or in the courts. That is why we oppose the thrust of the amendments.
The Minister has given an encouraging account of how the system will work. I was interested in what he had to say, but I am bound to reflect on our earlier discussions when we tried to take the words "wholly" and "predominantly" out of the Bill. In view of what the Minister has said, I should have thought that the Government would have been happy to have let them go. The fact that they did not makes me very suspicious. I suspect that the Minister's interpretation of the mapping process does not represent what will happen.
I am grateful to the Minister for his conscientious and full response to the amendments. The views that have been expressed around the Committee tonight at nearly half-past 12 show how important the amendments are. I suspect that the Government have underestimated the importance of the amendments, particularly Amendment No. 50, if I may say so about one of my own amendments. The pattern of agriculture has changed enormously. I urge the Government to reconsider Amendment No. 50 before we come back on Report.
It is late and I have agreed not to call a vote, but there are one or two things that I would like to say. My brain is a bit addled at this time of night, but I think that we have already moved from headage payments to area payments in the less favoured areas. That will help to relieve the problems that the noble Lord, Lord Hardy, mentioned.
Members of various political parties have argued that we need to sustain people in upland areas without them having to engage in overproduction. It is not natural for ewes to produce triplets in areas well above sea level. I hope that the noble Baroness agrees that the population of those upland areas needs to be maintained and can be maintained without agricultural provision for the same sort of money that the taxpayer is already forking out.
I shall not get into a full discussion with the noble Lord on that at this stage. I merely wanted to raise the issue of headage payments.
I have two other issues to raise. The Minister said that walkers would know the difference if they came across a one-year ley. I smiled slightly to myself and wondered how many walkers would know the difference between a grass field and a newly sown and growing cultivated crop of wheat or barley. There are problems attached to that, but they are for another day.
The Minister said that the Countryside Agency will decide what is or is not open country. For the third time today I find myself asking, "My goodness, what are we doing?" Are we legislating or are we merely enabling the Countryside Agency to interpret the Bill as it wishes at various stages? I believe that this is a serious issue and it is the third time tonight that we have mentioned that the Countryside Agency will be required to make a decision. That concerns me because I believe that it is for the Government to lay down the rules and regulations and for the agency to go about its business within those restrictions. However, that is the path down which the Government are going.
My noble friend Lord Marlesford and one or two other noble Lords behind me referred to the fact that, as we all know, agriculture has been through very difficult times. Mischievously, I wonder whether that is why the Government are passing the buck to the Countryside Agency so that it is the agency which must decide on some of these very important issues. I hope that that is not true.
Other noble Lords have raised very important points with regard to the definition of access land and I am most grateful to them. I suspect that we shall return to the issue on Report. I hope that between now and then the Minister will be able to take away the matter and give it further thought.
Before my noble friend sits down, perhaps I may support her request for the Minister to think again on Amendment No. 50, which changes "twelve months" to "five years". I believe that it is a particularly important amendment and I hope that the noble Lord, Lord McIntosh of Haringey, will consider the possible consequences of advice that will be given to farmers should the Government not change their mind. The Government got the issue of hedgerows fearfully wrong a year ago. The advice to farmers then was, "Don't trust the Government; cut your hedgerows". Of course, that was proved to be right, unfortunate though it was in so many cases.
I ask the Committee to think of the consequences of the advice that will be given to farmers in getting their land excepted because they dare not risk the Countryside Agency getting the mapping process wrong. The very land that my noble friend Lord Jopling mentioned will be put under cultivation. The five-year leys will be ploughed up more quickly than they should have been. The whole farming structure will be changed because farmers do not trust the Government. This is the one opportunity that the noble Lord could take to give some reassurance, particularly with regard to those delicate uplands.
I am duty bound to say that it is not for me to give advice to farmers about how they protect their own interests. However, the mapping process provides a substantial opportunity for consultation and objection by farmers. It would not seem to be wise for farmers to do things that they would not otherwise have done in advance of the mapping process. I discussed in some detail the issue of multi-annual crops. I do not believe that I can go further than that.
I do not believe that I can quite let that pass. There has been no suggestion that farmers will alter their practices. The truth is that from time to time they improve certain areas of their grassland and must re-sow. I suspect that we shall come to talk about the grass moors later, together with heather burning and other land management issues. Under these proposals such normal practices will be much more difficult. However, at this stage I beg leave to withdraw the amendment.
Perhaps I misunderstood the noble Earl, Lord Caithness. I hope that I did and, if I did, I apologise. However, I believed that he was suggesting that farmers might do things that they might not otherwise have done in order to avoid having their land classified as access land.
Amendments Nos. 39 and 40 have appeared in the wrong place in the grouping and should have been placed in the rather large group of amendments which I moved some time ago. However, at this time of night with these two amendments the Government have an opportunity to accept something which is common sense.
Land used for keeping horses and which contains stables or barns really is on the same scale and the same level as the keeper's cottage, in my opinion. Land use for animal pens or enclosures is similar. The horse is probably the most sensitive of all domestic animals. When frightened, it may do significant damage both to itself and to buildings. It seems reasonable that land which is used exclusively for keeping horses should be excepted.
I must declare an interest in that my daughter-in-law is, and has been for many years, a member of the British three-day event team. She has a stable of 15 or 20 horses in a very small acreage. However, it is part and parcel of wide open land. Regular visitors in considerable numbers with dogs and so on could be seriously disruptive to highly trained and valuable horses. I beg to move.
I disagree with my noble friend in relation to the fact that these amendments are taken separately. It is useful that they are dealt with in that way because they all treat with things which farmers can do by way of diversification. That is the point of the amendment which I have tabled.
Amendment No. 39 refers to horses. My amendment is concerned with a wider range of recreational activities which might turn out to be part of a viable business for those who aim to gain a living from the countryside. It is drawn fairly widely because we do not know what will turn out to be a viable enterprise in the future in rural and agricultural areas. Of course, diversification is the "in" word at the moment and probably the only way that many farmers will survive will be by deriving income from activities which are not connected directly with the production of food.
The issue of people paying for access to land is touched on in Amendments Nos. 82 and 83 but these amendments deal only with land for which access is currently being charged. My amendment seeks to allow the necessary scope for people wishing to diversify to restrict public access to enable them to carry out successfully that diversification. The activities to which I am referring may be motorcycle scrambling or even the creation of a wildfowl centre.
On the subject of wildfowl centres, I telephoned the managing director of the Wildfowl and Wetland Trust. That alerted me to the major ramifications which arise from a Bill like this. I asked him whether he had any worries about the management of his wildfowl reserves. He said that he had no worries because the existing sites in the trust's ownership were all SSSIs or were special protection areas and that he would expect to be able to impose all the necessary access restrictions under that element of the legislation.
He does expect that problems may arise in relation to breeding birds associated with river and lake margins, breeding tern colonies, winter wildfowl site roosts and feeding areas and even linear routes along watercourses.
Somebody wishing to diversify would not have the SSSI protection. If a farmer decides to make a pond or to develop a marshy area into a wildlife or bird sanctuary, the public would still have access to that. But if he then decided that it could be turned into a visitor attraction, it would not have the protection of a SSSI. It is then impossible to justify the expenditure necessary to turn it into a viable proposition. In some ways it means that all the land designated as access land becomes as potentially sterile commercially for any new venture as all the land designated as SSSI. Many people involved in land management have found that to be the case.
I support the amendment tabled by my noble friend Lord Glentoran in respect of horses, which are not always the most placid of animals. Horses can injure people and people can injure horses. That is an increasing problem in the countryside. Within the past three or four years I have had a horse out at grass in summer, driven on to a wire fence, which had to be put down. I do not know what happened, but it is clear that there were people and probably dogs about. I suppose the dogs chased the horse round the field. That is not uncommon. I have heard of other people to whom that has happened in the past two or three years. People can be injured. There is a danger to animals and a danger to people.
Members of the Committee will also be aware that in the past few years there have been an increasing number of unpleasant crimes involving horses. People have got into fields with horses and open areas at night and committed unpleasant violent attacks on them. That is an increasing problem in the countryside. In the summertime, many working horses are out of work and resting. They are put out into areas which either border open areas, moorland or heathland, or into those marginal parts of the countryside where there will be access areas or which are close to access areas. That sort of problem is already occurring and will no doubt increase. Where access areas border farmland, there are already problems with gates being left open. We now have to padlock gates. We have never had to do that before. That is not because people mean to do harm but because they do not know that they do harm. They leave gates open and let animals out on to the road, and so forth.
The problem with horses is particularly difficult, much more so than with sheep and cattle. I hope that the Government will take the problem into account. A shelter gives definite guidance that that is the sort of land that needs to be exempted from the mapping process.
We must bear in mind the state of the countryside at present, as we discussed earlier. We must also bear in mind the encouragement that landowners and farmers are being given to diversify. One of the areas into which they are diversifying is horse sports, which includes riding and having riding stables. Many farmers are doing that. It is massively on the increase. Large numbers of horses are being kept for that purpose. People are visiting wilder parts of the country in Wales, Dartmoor and the national parks for that reason. There is an increased horse population and an increasing number of people about. When people are not paying attention people and horses do not always mix as well as they should. It would be helpful if the Government could think carefully about that and nip the problem in the bud so that we do not have to return and do something in a year or two when the problem has developed.
The noble Lord, Lord Glentoran, was optimistic in looking for acceptances. I believe that the current provisions in the Bill already meet his points. In a sense we have, therefore, accepted them in advance.
Amendment No. 39 excepts land used for keeping horses which contains a stable, barn or shelter. He and the noble Lord, Lord Mancroft, have argued for that. However, as a rule, land which is intensively grazed by horses deteriorates unless it has been carefully managed. Therefore, it is extremely unlikely that such land would be classified as open country in the first instance. In addition, land which is covered by buildings, which would include stables, barns and most forms of shelter, is already a category of excepted land. In some cases the surrounding land where the horse is kept may also be classified as the curtilage of buildings if there are proper stables, and would therefore also be excepted. In most cases in places where the land is used for horses, horse breeding and so forth, the likelihood is that the land would have been excepted under the current provisions of the Bill.
That is even more the case under Amendment No. 40 which would except land used for animal pens or enclosures. It is true that originally the Bill did not include any provision in that respect. However, as a result of a debate in the other place, the Government tabled an amendment which added to the list of excepted categories,
"land covered by pens in use for the temporary reception or detention of livestock".
The noble Lord's amendment would slightly alter that and would include such pens and enclosures not in use. I cannot go that far, but where they are in use, they will be excluded.
In relation to Amendment No. 62, I understand the desire for or at least the option for diversification. However, it is unlikely that many such areas would need special exception, certainly not blanket exceptions. Land such as bathing beaches, campsites and wildlife centres can be taken in turn. Bathing beaches are highly unlikely to be covered by the statutory right to access as they do not fall within open country and are not registered common land. Likewise, we would not expect large campsites normally to be mapped as open country. In those situations where campsites do fall on land mapped as open country, they are likely to fall within another category of excepted land such as buildings and their curtilages; for example, tents are excepted under paragraph 2 of Schedule 1. If they do not fall within any of those excepted categories, there is still the option of applying to the relevant authority for access to be temporarily restricted or completely excluded.
In so far as wildlife centres would comprise buildings, they would be excepted and the surrounding area would be excepted. If the noble Duke, the Duke of Montrose, intends to include in the exception large extensive areas of land, then we do not consider that such areas should necessarily be excepted. Access may of course be excluded on the grounds of nature conservation. Again, that would be a viable approach to the Countryside Agency to provide exception on those grounds, which many wildlife centres would provide.
The noble Lord referred to activities for which a fee is charged. I understand that in the diversification process. But this issue is dealt with more generally in a later group of amendments. Certainly in relation to wildlife centres that exist at present, which tend to be run largely by wildlife organisations, those bodies have not suggested that there is a significant difficulty. But I can see that if one is moving from farming into that area, a slightly different situation may arise. We deal with the principle of that at a later stage. Therefore I cannot accept the amendments, though the majority of those tabled by the noble Lord, Lord Glentoran, are already covered.
I shall be brief. I have no wish to press the amendment to a vote but it invites the Government to look at the position of nature reserves. My noble friend will be aware that the Bill has been described as being important for wildlife; the most important piece of legislation for 20 years. It is significant but it is not as relevant as I should like. We must clarify the position of nature reserves.
The national bodies are often happy about the Bill but people working in or connected with nature reserves still retain anxieties. I am pleased that my amendment was not grouped with others relating to restrictions, because people like me want others to go into nature reserves. We want people to have the opportunity to observe and learn but we do not want them to wonder all over a nature reserve.
For example, the relevant county trust could lay out a suitable trail or walk so that people visiting a reserve could see why it exists. There may be a hide where people can quietly observe nature. One does not want to see a family picnicking in front of a hide on a nature reserve, leaving behind half a dozen plastic bottles, three drink containers and 14 sandwich wrappers, as people often do. However, we need to ensure that people running nature reserves can do so properly.
There is another important aspect. The Government are devoting resources and attention to biodiversity. The important areas of nature conservation can be considered and species can be preserved and safeguarded and perhaps reintroduced. If we are to have proper provision for biodiversity, there must be a capacity to protect nature in order that it can survive and prosper. Therefore, there must be a capacity to control or limit the activities of the human race. After all, when the first Bill to provide such access was presented in Parliament the motor car had not been invented. When the legislation was resurrected in the 1930s the number of motor cars, the amount of leisure and size of our population were much smaller. Even during the 50 years which have elapsed since the 1949 Act the capacity of people to create havoc has greatly increased.
In order to ensure that the wealth of our natural diversity is protected, and in order to provide adequate opportunities for people to learn and enjoy, we must preserve a capacity within the nature reserves of our island to serve that purpose.
I shall be happy to withdraw the amendment but I invite my noble friend to relieve the anxieties of those who are concerned at the sharp end of nature conservation, to provide the degree of protection for which I have called and to contribute to the Bill being regarded as an important wildlife measure. If that description is to be earned, we need to see adjustment. I beg to move.
No, it is not an SSSI. I can think of several sites in my region which are not SSSIs. One not far from my home serves that purpose but it is not, though it needs to be, protected. One can think of many definitions, but we should recognise the role of voluntary bodies in providing opportunities for the community as a whole. We should not take steps that weaken the capacity of a voluntary body, be it national, regional or county, to serve that purpose. If it means that the Government must recognise the need to encourage people to make a contribution to enjoy that provision, so be it. I do not wish to go into great detail, but it would be wise for my noble friend and his colleagues in government to look again at the need to retain the capacity to serve biodiversity and to educate. That means that we need to guarantee the capacity to protect.
We support the amendment. Like the noble Lord, I am not sure whether this is the right way to go about it. The noble Lord is quite right to say that this amendment goes entirely with the grain of the Bill. Our concern goes perhaps a little further. The noble Lord's amendment makes reference to established nature reserves. We have been pondering how to encourage new nature reserves, given the structure that the Committee is debating. I am glad that the noble Lord raises the point. I hope that the Committee can find a way to ensure that these very important resources, which go entirely with the grain of the Bill to support access and wildlife protection, are not damaged or prejudiced.
I rise to support in principle the aim of the noble Lord. The amendment highlights the difficulty of the Bill. We wish to allow people greater access--we have debated many exceptions tonight--while we conserve and, to a degree, extend wildlife areas and flora and fauna. The Government face a dilemma. Without going into the details tonight, I suspect that later in the Bill we shall consider the practical ways in which this can be dealt with. At this stage we understand whence the noble Lord is coming and add our support.
Like other Members of the Committee who have spoken, I do not disagree with very much of what my noble friend said in support of the amendment. I am slightly puzzled by the precise wording of the amendment. There is a problem about referring to established sites and excluding others. I was also unclear about my noble friend's reference to partial access. I do not believe that this is the appropriate way to deal with the issue. The list to which this amendment would be added talks about activities which have an automatic blanket exclusion from the right to access. Many existing nature reserves positively encourage public access. With relatively few exceptions, access and wildlife can co-exist without significant problems.
Therefore, there should be no automatic presumption that the provision of access is incompatible with any wildlife centre. That means that we must deal with it on a case-by-case basis, which is exactly the requirement that is laid down in relation to nature conservation as a ground for making an exception or restriction. That is backed by Part III of the Bill, which reflects the commitment to the protection of wildlife and nature conservation. We believe that that is the way to approach it rather than a blanket exception which excludes some forms of access that may be welcomed by those who run wildlife centres.
We agree with the objectives of my noble friend. However, we believe that the Bill already makes provision for them. Part I is compatible with Part III and gives greater protection to wildlife and minimises the impact of access on the activities of wildlife centres. My noble friend indicates that he will not press the matter tonight. We take account of these matters. We hope that any further reassurances can be provided at a later stage of the Bill.
The reason I used the phrase "partial access" is that someone suggested that there are so many days which can be used to exclude the public in other areas. That would not be relevant in a situation of this kind. I should like my noble friend to look at that. It is important that we get the right balance. Otherwise, the intentions of the Government will not bring the credit deserved. For that reason I trust he will look at it. I am sure it will be a matter we return to, perhaps more than once, but not any more tonight. I beg leave to withdraw the amendment.
I rise at this unsuitably late hour to address a matter of great principle to the Bill. Our amendment seeks to insert in the Bill:
"Nothing in this Act shall affect existing de facto access".
The fact is that, although the spirit of the Bill, the statements before the Bill from the DTI in its consultation papers and statements by the Minister before the Bill emphasised that the Bill is intended to improve access, especially for riders and cyclists, all the discussion in the other place about the Bill and all Schedule 2 emphasises is the fact that there will be a prohibition on, for example, taking an animal with one into open access areas. This would include a horse. There will be a prohibition on bathing; a prohibition on fishing; a prohibition on the use of canoes.
The issue is that in some areas--I address in particular riding--there has been a de facto access for years, established by tradition and custom and practice. On areas like Bodmin Moor it would be devastating if the Bill were to remove that access. The noble Lord, Lord Mancroft, who is not in his place, mentioned that farmers could diversify into riding and riding stables. So far as I can discover, many of those areas are not covered by the Bill. I am being brief because of the hour, but I would ask the Minister to make a definite statement as to whether or not the Bill reduces in any way the de facto access that people have enjoyed. If it does, he can be certain that we will return to the matter strongly at Report stage. To open up access to one group of people and remove the access rights of another group of people would be quite wrong.
I rise to support the amendment. Like other noble Lords, I have been written to by several horse organisations about their concerns that they will be the losers if the Bill goes through in its present form. I shall not go into further details tonight. I suspect other noble Lords will. It is a problem that needs to be addressed. I look forward to what the Minister has to say.
I first declare an interest. This is the first time I have spoken in relation to the Bill. I apologise to the Committee that I was unable to speak at Second Reading. My interest is as president of the Countryside Alliance and also in connection with this amendment, which I support, as someone who lives on Exmoor and enjoys riding and having open access to that moor. I am quite sure it was never the intention of the Government, certainly in anything we have heard so far, to restrict or control access which currently exists. Yet a great many people who ride, expressing their concerns through the British Horse Society, worry that the present drafting of the Bill, unless it is made absolutely clear, may lead to a situation where, having ridden for years over open moorland, they are suddenly stopped by a ranger who says,
"You are on access land. Horses are not allowed. You are not allowed here any more".
As I understand the present position, in many of the areas of open moorland, such as Exmoor, Bodmin and parts of Dartmoor, and on much common land too, people can ride virtually wherever they wish. The position is not enshrined in any enactment, although I understand that as far as concerns registered commons Section 193 of the Law of Property Act 1925 governs that access. But in most places it is not permissive. It is not covered by any enactment. The fact is that from time immemorial people have ridden. If you ask on Exmoor, "Where can I go?", you are told, "You can ride anywhere except where you can't", which is a very sensible way of putting it. However, the reality is that under the Bill as currently framed, and in particular under Schedule 2(1)(c), there is prohibition, which will be included in the maps, from taking with you on this land any animal other than a dog. That would prohibit people like me, like my neighbours and like many visitors to these areas who go down to ride and are very often accompanied by a dog as well.
What we ask is that the Bill should make it absolutely clear that nothing in it is intended to take away the de facto rights which are currently enjoyed and which currently cause no problems whatever. I hope the Minister will feel that this would be a sensible and beneficial way of dealing with some real worries about the Bill which need not arise.
The Government's intention in introducing the Bill has not been to restrict anyone's existing rights. Those existing rights, in so far as they are statutory rights, are clearly protected by the Bill when they go further than the rights of access either in geographical location or in terms of what one is allowed to do. What the amendment seeks to do is rather difficult to achieve by law. It seeks basically to protect rights which exist only voluntarily and have no legal basis. It is certainly not the Bill's intention to do that.
My noble friend Lady Mallalieu used the term "prohibition". It is not a prohibition. The right to access does not extend to the bringing of horses onto land. It covers a new right to access on foot. That is not a prohibition. If a landowner has hitherto tolerated access by horses and if there has been by custom and practice access by horses from, as my noble friend Lady Mallalieu put it, time immemorial, there is not a requirement on that landowner then to prohibit horses. Nevertheless, it is slightly difficult to provide by statute that he should continue in all circumstances to operate in the same way as he has hitherto done. It would be imposing what was a voluntary and consensual arrangement between the landowner and other users. I am not sure that one can do that by statute. On the other hand, I do not think that many of those landowners would, by virtue of the Bill being passed, alter what is their long-term practice of allowing access by horses or access to land which is not mapped as access land.
The problem can be exaggerated and can be referred to in a way which is not the intention or effect of the Bill; that is, to prohibit such activities on access land. If the landlord is happy for the arrangements to continue and a consensual understanding is in place, those arrangements can continue. However, I am not sure that statute law can be used to go further than that.
However, I recognise that this matter has caused anxiety and I have no doubt that we shall return to it on Report.
I understand entirely the point made by the Minister as regards translating a practice into statute. However, could it be approached by making a requirement that such a de facto situation should be taken into account during the mapping process; namely, that the principle should be applied to the mapping procedure rather than to the restrictions? Perhaps the Minister would like to consider that suggestion and return to it at the next stage.
I believe that the point is worth exploring, but I am not sure that the mapping process is the right way to approach it. It may well be that the local arrangements made through local access forums--I have lapsed into my "classical" mode--are more appropriate. Those forums may be better placed to address the issue.
At this stage, my advice is that we could not legally provide for the freezing of such rights because they are not rights, but rather voluntary tolerations on the part of the landowner--however long they may have been in place.
I shall be happy to return to the matter if noble Lords can think of another approach. However, I am clear that we cannot legislate in a blanket fashion. Such matters are best dealt with at the local level.
Before my noble friend sits down, while I appreciate what he has said, can he state for the future record that it was not the Government's intention, when introducing the Bill in its present form, that existing arrangements should be affected?
I thought that I had said that already. However, if I have not stated that it was not the Government's intention that the Bill should cause the end of existing arrangements, I hope that I have now made it clear. If the grammar of my statement needs to be tidied a little, I shall ensure it is done. I hope that the requirements of my noble friend have now been met.
While obviously not in anything like the same league in legal matters, my noble friend Lady Hamwee and I are grateful for the support given by the noble Baroness, Lady Mallalieu.
I wonder whether the Minister has yet received final authority for his advice on this issue. From my admittedly rather more naive point of view, I still find it difficult to understand why such a provision could not be put on the face of the Bill. I shall research the matter further.
In the meantime, we should bear in mind the reference made to the European Court of Human Rights and its judgments on tradition and practice and whether--this was referred to at length earlier this evening--ignoring people's rights to practise in their customary manner constitutes an infringement of their human rights. I beg leave to withdraw the amendment.