Countryside and Rights of Way Bill

– in the House of Lords at 3:00 pm on 1st November 2000.

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Report received.

Clause 1 [Principal definitions for Part I]:

Photo of The Earl of Caithness The Earl of Caithness Conservative 3:06 pm, 1st November 2000

moved Amendment No. 1:

Page 1, line 12, at end insert ("and is at least 2 hectares in size").

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I begin by thanking the Government for the amendments that they have tabled. This measure would have been almost impossible to administer on the ground, and their amendments will make it slightly easier to administer. I hope that the Government will continue to show flexibility during the Report stage, so that we can end up with a Bill that is sensible and workable. That is what all sides of the House want.

In Amendment No 1, we return to a theme that was discussed in Committee; namely, the question of the minimum size of a piece of land to be designated by the countryside agencies. In the Bill as presently drafted, there is flexibility for the Countryside Agency or an appropriate body to designate various parcels of land. However, I question whether that is cost-effective and whether there would be conformity of approach throughout the country.

If there is flexibility in that approach--which I admit has certain merits--it means that the appropriate authority will have to spend a considerable amount of time investigating every single bit of land, however small, in order to decide whether it is suitable for inclusion. The purpose of my amendment is to save time and money by imposing a minimum of two hectares.

The amendment I proposed in Committee sought a minimum of five hectares, and my noble friend on the Front Bench tabled an amendment in favour of 10 hectares. I listened to what the noble Lord, Lord Whitty, had to say on the matter. His argument that five or 10 hectares was too big had merit. I do not think that two hectares is too big. It would make the job of the appropriate authority very much easier if it could apply such a minimum. That would save a great deal of time and expense and would provide consistency throughout England and Wales. I beg to move.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I support my noble friend's amendment. Clearly, the Government considered our original amendments. I remember "football pitches" being referred to in Committee and it was said that the original size proposed in the amendments was too big. I urge the Minister to consider the amendment that is now before the House.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, the noble Lord seems to regard this as a bit of a negotiating session; indeed, we have gone down from 10 to 5 and now to 2. I suppose that I should be grateful for that. However, there is a principle involved here. The Government have recognised some of the arguments put forward from various quarters of this House. We have, in total, tabled about 40 amendments, most of which give some further leeway or greater flexibility to landowners. Therefore, most of them reflect the degree to which we have been prepared to listen to arguments in this House.

The amendment now before us, and many that follow, seeks to take those restrictions further. We have provided a flexibility for the countryside bodies to take them further in appropriate circumstances. There seem to be two problems. The first is that there is a mood in some quarters of this House that the restrictions should be greater than the Government have accepted. We believe that we now have a sensible range of amendments, which take account of earlier arguments. However--I say this not necessarily in relation solely to this amendment--we believe that we have gone far enough down that road. Minor alterations may be necessary here and there which we will accept in terms of today's arguments, but, in general, we believe that what we now have is a sensible balance.

We have also provided for a means to adjust that balance in response to factors that become apparent in the administration, in the mapping, or in the experience of operating access. We have given a discretion to the countryside bodies, under Clause 4(5) of the Bill, to decide not to map small areas of open country if it appears impractical or not sensible. That provides a practical and sensible tool, but does not mean the exclusion of all small areas of open countryside, many of which are quite attractive and ought to be open to the general public. That provision will allow bodies to exclude parcels of land that would involve wholly disproportionate effort, wholly disproportionate costs to survey or provide wholly insignificant benefit to the potential users.

In implementing the legislation, the countryside bodies may exclude land greater or less than two hectares. It is a matter for them to resolve in the light of the mapping process and in the light of experience. For example, they may decide to apply different thresholds to some types of land. We do not see any reason to interfere with that discretion. Part of the problem seems to be that some noble Lords, especially from the party opposite, do not trust the Countryside Agency to exercise this discretion fairly and equitably. If we cannot trust our public bodies--there are great public servants who operate within the Countryside Agency--we shall have difficulty in making this Bill work in general. We should not make the situation worse for the agency by imposing on it arbitrary limitations. We should leave such matters to its discretion. I hope that noble Lords, both in respect of this amendment and others, will overcome their paranoia about the Countryside Agency and recognise that that is the way in which flexibility operates under our system of government in this area, as well as in others.

The amendment would not excuse the countryside bodies from the duty to consider including such land; it would simply introduce an arbitrary cut-off point. That seems to me to represent an inhibition as regards achieving equity and common sense in their task, rather than making it easier. The amendment also fails to recognise that open country comes in many shapes and sizes. A small area of wasteland formed by the angle of two roads might genuinely provide a useful recreational area in the vicinity of a village. But a similar sized area would be less significant if it were on the edge of, say, Dartmoor. We are certainly not prepared to assume that it is not worth granting a right of access to all land of a size of less than two hectares. Indeed, it is much better to leave such discretion to the countryside bodies. I hope, therefore, that the noble Earl will not pursue this amendment, and others, that would fetter such discretion and make the job of mapping that much more difficult.

Photo of The Earl of Caithness The Earl of Caithness Conservative 3:15 pm, 1st November 2000

My Lords, I am grateful to the Minister. However, I cannot follow his final comment; namely, that it would make the job of mapping more difficult if we excluded small areas. I believe that it would make that task that much easier. The whole point of my amendment is that if you say that no land below two hectares is to be mapped, it will make the whole process for the countryside bodies so much simpler. Indeed, everyone would be clear on the position--the countryside bodies and the owners and occupiers of land. But if you have a fully flexible system, which the noble Lord advocates, that will lead to wholly disproportionate costs in many areas and to inconsistencies throughout the country.

I believe that the noble Lord's arguments are wrong. It is not a question of mistrusting the countryside bodies. At the end of the day, it is a question of pure practicality. That is what I am trying to achieve. It should be clear for the countryside bodies and for those occupying the land that small areas need not be mapped. That would be clear, cost effective and surely must be right. However, I realise that the Government are utterly entrenched on the matter. I believe them to be wrong, but only time will prove who is right. I hope that the Minister will be able to quantify in due course the extra costs to the countryside bodies of this work and that he will account to Parliament for it. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

moved Amendment No. 1A:

Page 2, line 8, after ("Agency") insert ("which shall carry out its obligations under this Act through its employees unless contracting out to third parties is agreed by the access authority in consultation with the local access forum").

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, in moving this amendment, I shall speak also to Amendment No. 1B. I should like to welcome the fact that we have arrived at the Report stage of this Bill and to say how pleased we are on these Benches with the progress made in Committee, especially the number of amendments that the Government have brought forward.

However, during our discussions in Committee, the words "discretion" and "sensitivity" were mentioned many times in relation to the Countryside Agency. Indeed, I believe that the Minister mentioned those words just a short while ago. The way in which the agency exercises such discretion is obviously crucial. These amendments were prompted by concerns as to exactly how that discretion will operate. It is clear that the Countryside Agency will not be able to begin to implement all of the functions that it will now have to undertake as a result of the Bill. It will obviously have to contract out a large number of the tasks that will arise as a result of this legislation, as is the case with the mapping.

In practice, contractual arrangements depend very much on how successful the original specification is in drawing up the exact responsibilities of the private enterprise as regards the people with whom it will be dealing. Given the fact that the agency will have a relationship between access authorities, local access forums and the agency--with the contractor somewhere in the middle--we need to hear from the Minister exactly what is in the Government's mind in terms of giving guidance to the agency about contracting out these very sensitive areas of work. Indeed, they would include not only the mapping but also appeals on behalf of landowners about closures, which was something that exercised all our minds in Committee; for example, when it would be reasonable to grant discretion to landowners to close their land beyond the 28 days given in the Bill. However, I am sure that we shall debate that issue again at equal length.

I should like to know what sort of guidance the Government intend to give the agency on such matters. In the event of the contract not being a happy arrangement in a certain area, can the Minister say what process could be followed in such circumstances? For example, will there be a right of appeal to the Countryside Agency because the contractor is not carrying out its duty in the way that people had hoped? Alternatively, will the appeal be to the Secretary of State? At present, I am quite unclear as to how that relationship would work in these extremely sensitive areas. I beg to move.

Photo of Lord Boston of Faversham Lord Boston of Faversham Crossbench

My Lords, although the meaning of this amendment, as printed, is no doubt clear, I must point out to your Lordships that there are two printing mistakes in it. The quotation marks should appear before the words "covered" and "of", not before the words "leave" and "insert".

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, this seems to me a sensible amendment. I believe that probably most Members of your Lordships' House have become increasingly anxious that the agency will have an enormous amount to do, and some of that in a short space of time. It is important that the agency should be able to contract out and that Parliament should know the conditions under which that is done and what happens if the people who do the contracting out do not properly fulfil their responsibilities. I am sure that noble Lords will listen to the Minister's response with great interest.

Photo of Lord Boston of Faversham Lord Boston of Faversham Crossbench

My Lords, I apologise to your Lordships; it is I who have made a mistake on this occasion. I referred to two errors which we shall no doubt come to in due course. Amendment No. 1A, as proposed by the noble Baroness, Lady Miller of Chilthorne Domer, states:

"Page 2, line 8, after ('Agency') insert ('which shall carry out its duties under this Act through its employees unless contracting out to third parties is agreed by the access authority in consultation with the local access forum')".

I am sorry for having detained your Lordships because of my error.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, these amendments would require the countryside bodies to consult with local access forums before appointing a contractor. That is a significant inhibition on the Countryside Agency in carrying out this work. As we shall discover when we discuss the relevant amendments, local access forums are regarded as an important factor in assessing how we establish and manage access. However, we do not believe that they are appropriate bodies to consult in the context we are discussing.

The countryside bodies are required to produce maps of all registered common land and open country. They will be required by regulations to consult widely on draft maps, consider representations, then produce provisional maps for confirmation or amendment following the hearing of any appeals by the Secretary of State or the National Assembly for Wales.

That is a considerable task. We cannot expect the countryside bodies to use directly employed staff in all contexts. The in-house staff will not have all of the technical expertise that is required. When specialist staff can be contracted to carry out certain work it would not be sensible for the countryside bodies to employ specialists for a limited period and then dispense with them. The bodies involved have already taken steps to identify, and where necessary contract, organisations and individuals with the right skills to do this work. As we discussed earlier, they are working closely with the Ordnance Survey to ensure high technical standards. In mapping and other areas they will need expertise which complements their in-house expertise. However, oversight and responsibility for all this work will rest with the countryside bodies. Their staff will set the parameters, oversee the operation of the contracts and will have a direct and vital role in discussions with the interested parties during the process and afterwards. They take extremely seriously the prospect of carrying out their functions. They are determined to carry out that work in a professional and transparent manner.

The amendments imply that we would employ particular bodies for particular mapping purposes. However, it is more likely that we would employ under contract particular organisations or personnel for their general expertise. It would therefore be difficult to engage a significant number of local access forums in the contractual arrangements, as the amendments would require, because they would be organised on a national or regional basis rather than on an area or county basis. There may be occasions where that is not the case but in those situations the countryside bodies' own staff would engage in full consultation with the relevant local access forums.

As regards guidance to the Countryside Agency, I think I have indicated that it will have tight overall management of this work. We shall not give specific guidance to the Countryside Agency on contracting out. However, the provisions in regulations--I refer, in particular, to Clause 11 which concerns regulations relating to maps--will set out in detail the requirements for consultation and appeal, which the noble Baroness was particularly worried about, and will allow us to concentrate on achieving the right outcomes without interfering in the way in which the Countryside Agency mobilises the inputs, whether in terms of direct staff or separate contracted companies or individuals. Therefore the fact that that body will be in charge of the procedure will safeguard the appeals process. What we are really talking about here is deploying expertise.

As I say, the Countryside Agency will be in charge of the process. It will consult with local interest groups and local access forums. Most of the expertise will probably consist of contracted specialists. I believe that the amendments are inappropriate. I hope that the noble Baroness will not press them.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, I thank the Minister for his full reply. He mentioned the spirit of the approach that the Government will adopt towards the agency. That is helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 1B not moved.]

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

moved Amendment No. 2:

Page 2, line 15, at end insert ("is open and which").

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, this is a drafting amendment but it raises a point of considerable importance as it affects the whole question of what constitutes access land. I hasten to assure the Minister that in raising this point I am in no way infected with paranoia.

The first aim of the Bill, as stated in Clause 1(1)(a), is to give access to "open country". The question of what constitutes open country is conclusively resolved and defined in Clause 1(2) which states that "'open country' means"--that is therefore exclusive--

"land which-- appears to the appropriate countryside body to consist wholly or predominantly of mountain, moor, heath or down".

For the purposes of the point I am making I shall concentrate on downs. By that definition, any land which appears to consist mainly of down is open country. Thus, if one has an area of land which is undoubtedly mainly down, it is within the definition of open country and therefore becomes access land even if it is not open at all. That point became apparent on the first day of Committee in this Chamber when there was discussion of a technical nature as to what constituted a down. The noble Lord, Lord Whitty, suggested that that probably included parts of the Cotswolds, the Yorkshire Wolds and other such places. It then became apparent to me that if those areas of countryside are considered downs, they are within the primary definition of open country, whether or not they are open. No one, not even the Countryside Commission, can say, "They are down but they are not open and therefore we shall not treat them as open country".

The definition states that all land which is down is open country and therefore under Clause 4(1) it must be mapped, unless, of course, it is of a de minimis quantity. That cannot be what was intended. I give an analogy. Let us suppose that an Act protects ancient dwellings but states that an ancient dwelling means any building constructed before 1600. Then any such building is included, whether or not it is a dwelling. One has precisely the same situation here in that any down is included, whether or not it is open. Therefore I wish the definition to state that open country constitutes land which is open and which appears to be wholly or predominantly heath or down.

I confidently hope that the Minister will gratefully accept my freely-given advice and improvement to the Bill. I beg to move.

Photo of Lord Glentoran Lord Glentoran Conservative 3:30 pm, 1st November 2000

My Lords, I support the amendment. It is the first time that I have heard the noble Viscount's arguments. They sound eminently sensible and help with the description over which we struggled for such a long time in Committee.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, can the Minister confirm that in construing the definition of "open country", which appears to the appropriate body to consist of the various types of land described, that body must apply the usual Wednesbury principle? Bearing that in mind, the definition of open country is used to define access land and has to be read alongside the schedule of exceptions from open land. One has to marry the definitions together. Nevertheless, the point is already covered.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, the noble Viscount refers to this as a drafting amendment. Taken literally, it is closer to a wrecking amendment. I am not sure that that is the noble Viscount's intention but in practice that would be the effect. It would mean that enclosed land, typically fields, could not be mapped as open country for the purposes of the Bill. As the noble Viscount hinted, the effect would be to exclude most downland and significant areas of moor and heath from the definition of access land.

The term "open country" is defined effectively as mountain, moor, heath and down. In the Government's consultation paper published in February 1998, we said that,

"open does not necessarily mean 'unenclosed': some of the land may well be fenced, for example, to prevent grazing animals straying onto roads, or it may include walls to separate areas of grazing".

Indeed, much of our currently accessible open land is covered in drystone walls and can be regarded as enclosed land.

As the noble Baroness, Lady Hamwee, said, that does not mean that everything on downland would be treated as open country. The restrictions have to be read together with what appears to be mountain, moor, heath and down. Therefore, there would be substantial exceptions and restrictions on the downlands referred to, principally in relation to arable land. Enclosed arable land would be automatically excluded.

We thought that we had made clear that there is nothing in the Bill which restricts landowners from doing what they like with their land. Therefore, if they use the land for arable farming, even though otherwise it might fall within the definition of downland, it is excluded. If they wish to erect fences or walls around the field, they are entitled to do so but in certain circumstances that will still be open country. Providing a barrier, a wall, which may be there already or erected, will not exclude it from being access land.

Very little of the downland commons which range across the tops of the chalk ridges in south-east England remain common land, having succumbed to enclosure in the 18th and 19th centuries. Much, if not all, has been enclosed to permit the management of stock. Such enclosure need not affect the characteristics of downland, typified by rolling hills, steep slopes, dry valleys and short rich turf. Those areas will be identified as downland. But if they are used for purposes which lead to an exclusion or restriction, they will not be treated as access land.

It is also not axiomatic that moor and heath, for example, are unenclosed. Moorland has been enclosed or allotted by landowners at various times in the past 200 years. The changing economics of agriculture, and the poor productivity of the soil, has caused some of that land to resume the characteristics of unimproved moorland.

Therefore we do not accept the principle of the amendment. In all the categories of mountain, moor, heath and down there may be enclosed land which it is appropriate to treat as access land. Yes, countryside bodies will need to act reasonably when they apply their discretion. They will need to review the definitions and to have careful regard to the exclusions and restrictions in the other clauses of the Bill. But they will not be expected to exclude excepted land from maps unless they believe that to be not predominantly open country. Therefore they will identify mountain, moor, heath and down and then consider whether that land is being used for purposes which are inappropriate for treatment as access land and covered by the exceptions in the Bill.

The implication of the amendment is that all enclosed land should be excluded from the definition. That is a substantial undermining of the principle of the Bill and would cause grave difficulties in delivering the main purpose of the Bill

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, I am grateful to the Minister for that full reply. I am sure that he knows me too well even to contemplate the idea that I might seek to wreck his Bill. For the reasons he gives, I accept that this is not the proper solution. However, I suggest that the debate in Committee on what is or is not downland will need resolving. I hope that he will give that point further thought and return to it at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of The Earl of Caithness The Earl of Caithness Conservative

moved Amendment No. 3:

Page 2, line 17, after ("down") insert ("(but excluding land habitually used for the making of hay, silage or haylage)").

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, in moving the amendment, I speak also to Amendments Nos. 6 and 13.

On many occasions in another place and in this House the Government have said often that they do not wish to include in the definition, land that is used for the making of hay and silage: but that point is not clear in the Bill. The amendment seeks to clarify the position so that what has been said by Ministers is on the face of the Bill.

I have sought to be helpful to the Government and have given them an alternative in Amendments Nos. 6 and 13. The amendment provides that,

"land habitually used for the making of hay, silage or haylage", would be listed in Schedule 1 as excepted land. I have used the word "habitually" because it is used in government Amendment No. 17 on training gallops. Amendment No. 13 makes clear that this excepted land would not be available for access for the period 1st March to 30th September when hay and silage is being made, but would be available from the period October to February.

I hope that the Government and I are in tune. It is an aim we both wish to achieve. I have given the Government two alternatives. I beg to move.

Photo of Earl Peel Earl Peel Conservative

My Lords, Amendment No. 7 is in this group. With the leave of the House, I should like to speak to Amendment No. 8 separately. As the Bill stands, excepted land for access includes,

"Land on which the soil is being, or has at any time within the previous twelve months been, disturbed by any ploughing or drilling undertaken for the purposes of planting or sowing crops or trees".

In other words, the definition specifically covers cultivated land.

Like my noble friend Lord Caithness, I believe that to be inadequate, as it may not cover improved or semi-improved grassland that produces hay, silage or haylage--a new word. That is clearly an essential part of farmers' livelihoods.

I am sure that it will not be the express intention of the access authorities to include such land within access provisions. I take issue with the Minister's suggestion that the Conservatives have an inherent mistrust of the Countryside Agency. That was a little blunt. As my noble friend has already said, we are trying to define the areas in question in a way that will not lead to confusion.

In Committee, we had a considerable debate on the definition of "open country" under Clause 1, which covers land that,

"appears to the appropriate countryside body to consist wholly or predominantly of mountain, moor, heath or down".

Many of us felt that that description was too wide and could lead to difficulties and appeals during the mapping process. It is important to try to clarify as best we can the various land types. I agree that it is not always possible, but in this case it is possible and desirable. It would be inappropriate to allow the land that I am talking about to be included in the access provisions. Getting it right now will reduce the chances of confusion and appeals at the mapping stage. That alone would be very helpful.

I accept that Amendment No. 7 is not dissimilar to Amendment No. 3, tabled by my noble friend Lord Caithness. However, the definition in my amendment has been adopted previously in legislation, appearing in Sections 42 and 52 of the Wildlife and Countryside Act 1981, so it has a sound precedent.

Furthermore, on Report in another place, at column 809, Mr Meacher, the Minister there, expressed sympathy with the idea that such land should be excepted. If the Minister in another place feels that it should be excepted, I expect the Minister in this House to adhere to that.

The amendment is straightforward and would make it clear that any land that was not used for any reason other than rough grazing was excepted land. I hope that the Minister will agree.

Photo of Lord Monro of Langholm Lord Monro of Langholm Conservative 3:45 pm, 1st November 2000

My Lords, I apologise to the House for not having been present in Committee. I would have supported the noble Earls, Lord Caithness and Lord Peel, at the time.

From a purely practical farming point of view, the Government are missing an important trick. They seem to forget that grassland or meadow land, particularly on hill farms, is often a link between the nearest access road and the open hill. During the summer growing months of June, July and August, it is very important that such land should not be disturbed if the farmer intends to take a crop of hay or silage from it.

The Government have said that cultivated land will be excepted, but hill grassland is not normally in any form of rotation. It would normally be broken perhaps only once every 10 years, or perhaps not at all if constant improvement was possible with lime and fertiliser. In those circumstances, it could not possibly come under the regular cultivation exception. In any event, as most hill farmers know, it takes two or three years to establish a good sward from a directly re-seeded meadow before it is fit for hay or silage.

Another important reason for not disturbing the fields in the summer is to protect certain ground-nesting birds. When I was the Minister for Rural Affairs in Scotland, I visited SSSIs in the Outer Hebrides--that may be a long way from England, but the issues are the same--where the farmers received management agreements provided that they did not cut the hay until 1st August. That enabled corncrakes and other ground-nesting birds such as curlews to nest in the hay. The birds would be fledged by the end of July or the beginning of August. There was therefore a double reason why the ground should not be disturbed by people using it for access to open hills.

There are good reasons to support the amendments. Winter keep is essential for hill farms. If it can be taken only from a few meadows or grassland fields around the farm that are likely to be used by the general public for access to open hills, those fields should be kept clear of footsloggers during the hay period, from the end of May until well into August. That would enable the hay to grow to best advantage and would avoid disturbance of ground-nesting birds, which is often a problem on such land. We should give the amendments a fair wind, even if we have to come back to the issue at Third Reading.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, the amendments are important. To put the issue in a slightly different way, the House should realise that grass is an important crop. In many parts of the country, particularly in Wales, it is increasingly important, because the low price of cereals makes it worth growing grass wherever it grows best. It is grown not just permanently as rough grazing, but for intensive grazing. Sometimes it is even divided into compartments so that stock can feed on one part and then on another, or for hay, silage or haylage, as the amendments specify.

It would be disastrous to have people walking across such grass. It is important for people to realise that it has to be treated in the same way as a field of grain or root crops.

I do not know whether we have come up with the right definition. I suspect that my noble friend Lord Peel has come up with the best solution, because his amendment specifies everything that is not rough grazing. It embraces all the different ways that grass may be grown in potential access areas and does not limit it only to hay, silage and haylage. The Minister may have a view on that.

I hope that this matter is being considered because it is a problem that may lead to the type of confrontation in the countryside that we want to avoid. We need clarity in relation to the definitions.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, I support what the noble Baroness, Lady Carnegy, has just said. In one way or another for 40 years I have had connections with the Redesdale Experimental Husbandry Farm. I am most concerned to realise from this debate that the Government may be considering the possibility of making subject to access what is called "in-bye land"; at least, it is called that at Redesdale and in Northumberland.

The reason for my anxiety concerns not only the absolute necessity of having a hay supply, but also lambing. Over the past 30 or 40 years the practice of lambing on hills has been less and less popular. Sheep are now brought into in-bye fields for lambing or into lambing sheds. Building lambing sheds represents an extremely expensive capital project which many hill farmers would not be able to undertake. It is absolutely essential that fields should be available for lambing and that they should be undisturbed. I believe that this is another important argument for accepting the amendment tabled by the noble Earl, Lord Peel, rather than the others.

Photo of Lord Hardy of Wath Lord Hardy of Wath Labour

My Lords, without entering into an argument about the merits of a particular amendment, perhaps I may express sympathy with the approach. It is essential that we encourage farmers to grow rather than buy in feed. The BSE tragedy provides evidence of that desirability. If they are to be encouraged to grow feed, I believe that consideration must be given to this approach. It would, of course, be helpful to ground-nesting birds as well. I hope that my noble friend will be able to give careful thought to this matter.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, we on these Benches are concerned that the land used for growing grass crops does not have a closer definition. Indeed, on behalf of the Government in Committee the noble Lord, Lord McIntosh, said that he recognised the concern of noble Lords. He acknowledged that access to fields could cause damage and went on to say that,

"farmers will have every opportunity to see that it"-- that is, the land used for grass crops--

"is excluded from the maps".--[Official Report, 27/9/00; col 919.]

Those of us who are concerned about smaller upland farmers believe that at the moment the boot seems to be on the wrong foot. Farmers who need land to grow grass crops for their animals should be able to expect that land to be excluded. Like the noble Baroness, Lady Carnegy of Lour, I am not sure that any of the amendments in this group quite meet what we are seeking to achieve. I urge the Government to give one last thought to this matter and to return with their own amendment at the next stage.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

My Lords, first, I apologise for not having been here for the earlier stages of the Bill. I support these amendments. At my home, groups of people ask permission to walk across our land and on many occasions we permit them to do so. However, people must be kept away from standing crops of hay which are to be cut for silage. Many people wonder what happens to the crops if they are walked on. Quite simply, they end up on the ground and the machinery cannot pick them up.

Although normally seen in grain, an indication of the damage that is done can be seen when flying into London airport in the summer over areas where standing grain grows in fields close to houses. It is possible to see from the air the amount of damage that is caused, even in areas where people do not necessarily have a right of access. One can see the damage caused to great swathes of crops which have been tracked through, let alone the damage created by crop circles. If one flies over the affected area a few weeks later after the crops have been cut, it is possible to see areas which have been left uncut purely because people have wandered through them. Therefore, I support the amendments.

Photo of Lord Jopling Lord Jopling Conservative

My Lords, my mind was working on exactly the same point as that made by the noble Lord, Lord Northbourne, when he talked about the Redesdale Farm in Northumberland, with which I am familiar. I remember visiting that particular experimental farm when I was a Minister in MAFF a good many years ago.

I remember talking to people during that visit about hill farming in the north of England. It was put to me in strong terms that one of the greatest inhibitions for a hill farmer is his capacity to over-winter his sheep. I was told that there was always plenty of keep in the summer on the hill and moor but that it was difficult to conserve enough material, whether hay, silage or whatever, for keeping the stock over winter.

If the Minister wants an example of that I invite him to ask for advice about the demand from hill farmers for their sheep to go to the lowlands during the winter and to eat sugar beet tops. After the sugar beet has been removed, the tops keep sheep effectively for considerable lengths of time during the depths of winter. Many farmers cannot keep enough sheep to provide them with a reasonable livelihood during the winter because of the difficulty of providing enough winter keep for them from their farms. Therefore, I believe that these amendments are exceptionally important and I hope that the Government will take them seriously.

I want to make another point which I believe has been half made already. However, I should like to express it a little more fully. One thinks of lush meadows in the lowlands which are about to be cut for hay or silage, but on the uplands the crops are very much thinner. Often, people who visit the countryside do not know as much about the ways of the countryside as many of us would wish. I believe that in many upland areas a rambler could mistake a hay or silage crop for grazing land. It is possible that he would not realise that grass was being grown for conservation. Therefore, unless farmers can fall back on an Act of Parliament which states that land is excepted from the right to roam, it will be extremely difficult for them to keep the public off land where grass is being grown for conservation.

I plead with the Minister to take on board the points that have been made on all sides of the House. I hope that he will either accept the amendments or return at Third Reading with other amendments to deal with this practical problem for upland farmers.

Photo of Lord Rotherwick Lord Rotherwick Conservative

My Lords, I rise to speak briefly as a landowner and manager who no longer makes silage, hay or haylage. I agree entirely with what the noble Lord on my right and the noble Viscount, Lord Brookeborough, said. However, a point which no one has yet raised is that of safety. I speak as someone who has grown such crops in the past. They are harvested with fast-moving, sharp-cutting, knived machines. The crops can be three feet high and it is not easy to see if anything is lying in them. Surely it cannot be right to allow people to have access to crops when they are being cut by dangerous machinery.

Photo of Baroness Strange Baroness Strange Crossbench

My Lords, I wish to make a tiny point. These fields contain food. They are not places in which to walk; they are growing food for sheep. It would be just the same if people had the right to roam in a restaurant and walk about on the tables all over the dishes.

Photo of Baroness Byford Baroness Byford Conservative 4:00 pm, 1st November 2000

My Lords, I am not sure how to follow the words of the noble Baroness, Lady Strange. I understand what is meant. It is a graphic example of the problem that we face.

The Minister will be well aware of the feeling around the House this afternoon on the practicalities of the Bill's implications if we do not look at this issue in all seriousness. We refer particularly to the hill farmers who are struggling to survive at the moment. If these additional restrictions are not made, I fear that it will become worse and more difficult for them. I hope that the Minister will consider these matters very seriously.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, we gave assurances in Committee and assurances were given in another place that the criteria adopted by the countryside bodies for the mapping of open country will exclude improved agricultural land from maps of open country. We had said repeatedly that this land will fall outside the criteria which the countryside bodies are adopting for mapping open country. We wrote recently to the noble Baroness, Lady Byford, to explain that the Countryside Agency has already issued a paper for consideration by the National Countryside Access Forum setting out its initial views on the criteria it should adopt in mapping open country. If that paper was not copied to any noble Lords who have taken part in this debate, I should be happy to do that.

The paper focuses on naturally occurring vegetation as an indicator of its status as mountain, moor, heath or down. The proposed criteria exclude land that comprises improved or semi-improved pastures, arable land, land used for rotational cropping and set aside.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

My Lords, I thank the noble Lord for giving way. What is the definition of "improved"? We have land at home that we wanted to plant out with trees. We obtained one level of grant for improved land and one level for unimproved land as defined by the Ministry of Agriculture. For improved land there has to be a certain percentage of certain types of grasses. There is very good unimproved land--by the definition the Ministry gives--which is used for cropping, grass, haylage and silage. Therefore, much of it would fall outside what the Minister just said.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I had better pursue my argument which has to be seen as a whole rather than intervene in negotiations between the noble Viscount, Lord Brookeborough, and the Northern Ireland Department of Agriculture. Clearly, whatever definitions are used for grant purposes, they are not the same as the definitions that the Countryside Agency will draw up for the purposes of this Act.

The criteria are not complete. They will be developed and refined and subject to consultation. They will include a working methodology as part of the pilot mapping exercise in respect of which a contract will be let later this year.

The Government endorse the selection of criteria that excludes these types of land. We can assure all who have taken part in this debate that the purposes for which these amendments have been tabled will be achieved by the Bill, and plans are being put in place for their implementation.

I deal with the amendments in turn. Amendment No. 3 would exclude from the definition of "open country" land which is habitually--and the noble Earl, Lord Caithness, is right in taking the word "habitually" from Amendment Nos. 14 and 17--used for the making of hay, silage or haylage. It is drafted more narrowly than Amendment No. 58 which is on a similar subject but which is to be taken separately. It deals particularly with grassland capable of producing a commercial crop. The use of the word "habitually" should avoid the unnecessary exclusion of extensive areas of downland from maps of open country. It would still leave considerable doubt about the status of downland from which a hay cut is often taken. Much traditional downland is capable of providing a crop of hay in a good year. We do not believe that the potential for generating a crop of hay on downland makes it inconsistent with rights of access.

There may be a need at times to protect grass from trampling, and that point has been made very effectively this afternoon. I want to give three answers to that. First, it can often be achieved by encouraging the use of paths. Secondly, where restrictions are required, entitled persons will be able to close the land or restrict access using their discretion under Clause 21 which is enhanced by our Amendment No. 117 or, thirdly, to apply to the relevant authority for a direction for the purposes of land management. I say that in response to the noble Lord, Lord Monro of Langholm.

Where a hay crop is regularly taken from the land, the relevant authority can make a direction that has effect for the appropriate period in every spring or early summer. I accept that if the Bill were to cover Scotland, the spring might go through to later than early summer.

How would the farmer demonstrate to the satisfaction of the countryside bodies or the Secretary of State his habitual practice of taking a cut of hay from the land? An amendment along these lines would be very difficult to apply in practice.

Amendments Nos. 6 and 13 represent an alternative approach in that they add provisions similar to Amendment No. 3 to the categories of excepted land in Schedule 1. Amendment No. 7 would simply exclude agricultural land rather than rough grazing.

Both the noble Earl, Lord Peel, and the noble Baroness, Lady Carnegy, talked about the need for clarity. I agree with them. The noble Earl, Lord Peel, spoke about the need for clarity in the appeals process. The need for clarity goes further than that. We explained in detail in Committee that it would be unhelpful to introduce into Schedule 1 any exception of land that was not readily identifiable by the public and by farmers. No walker could be expected to identify land that was habitually used for the making of hay, silage or haylage unless he were accompanied by a team of agricultural consultants; nor would a walker be any better informed about whether land was rough grazing.

It is much more sensible that land inappropriate to the right of access is excluded at the mapping stage. The process set out in the Bill, with the assurances that I have given, will achieve this objective.

The noble Earl, Lord Peel, and others referred to the definition used in earlier legislation of exclusion of agricultural land by reason only that it affords rough grazing for livestock. That test has not worked very often. It has rarely, if ever, been necessary to use the test for exactly the reason that applies in this case because under the earlier legislation improved and semi-improved pastures were excluded from agreement land in the first place. In this legislation we have always made it clear that mountain, moor, heath and down are intended only to include agricultural land used for rough grazing. It is in the mapping process that this land will be identified and other agricultural land excluded.

The noble Lords, Lord Northbourne and Lord Jopling, mentioned in-bye land referring in particular to Northumberland. It is unlikely that much in-bye land would be mapped as open country as it is very rarely mountain, moor, heath or down. One must remember that that is the overriding control on what is included in mapping. Some land of this kind has long since ceased to be managed and has resumed characteristics typically of moorland, and surely that should be mapped as open country if it is so.

The noble Lord, Lord Monro of Langholm, talked about improved and reseeded fields. These lands are unlikely to be mapped as open country as they will not be mountain, moor, heath or down. The question of exception of this land in Schedule 1 does not arise.

I recognise that there is strong feeling around the House. We believe that the Bill as drafted provides the protection sought for hill farmers. But in the light of the strength of feeling which has been expressed, I am certainly willing to explore what more can be done on the face of the Bill to ensure that "open country" can be better defined so as to exclude land regularly used for the making of hay or silage.

If we can conclude a form of words which is satisfactory and which does not exclude large areas of downland which really should be covered by the Bill--and I can give no commitment on that point--then we shall consider whether, under those circumstances, we could table an amendment to that effect at Third Reading.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I am grateful to all noble Lords who have taken part in this wide-ranging but at the same time specific debate because it has focused on a major lacuna within the Bill. There has been support for the idea behind the amendment and the idea of the noble Earl, Lord Peel, from the Labour and Liberal Democrat Benches, from the Cross Benches, and from my own side. For that, I am extremely grateful.

I was very concerned by a number of the Minister's comments. I wish to read them carefully in Hansard. It sounded to me as though the Government were going back on what they had said both in another place and in this House. The Minister's words about land on which hay could be made were, in my view, a distinct retreat from the Government's earlier position. That will be of immense concern to every upland farmer who is following this issue with great anxiety.

The Minister made a rather dismissive remark that definitions are different in Northern Ireland. That was an insult to--

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I did not say that. I said that definitions of improved and semi-improved land used for the purposes of grant might be different. There were no aspersions cast on or praise given to Northern Ireland.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I thank the noble Lord, Lord McIntosh of Haringey, for that clarification. It only goes to prove that more work is to be put on the owners and occupiers. One set of definitions is used for the purposes of grant and a completely different set will be dreamt up by the Government in relation to access. Life will be made more difficult for those in the countryside.

I was concerned about 99 per cent of what the noble Lord said. However, he produced a little pearl to hang on to at the end when he said that he would take away the matter for consideration. It would therefore be wrong to test the opinion of the House on this amendment or, indeed, on subsequent Amendments Nos. 6 and 13. I hope that the noble Lord is serious and that he will require his officials to come up with an appropriate amendment. Clearly, what is on the face of the Bill at the moment is totally unsatisfactory and represents a danger to wildlife as well as to the prosperity of the farming community. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

moved Amendment No. 4:

Page 2, leave out lines 19 to 21 and insert--

("(3) In this Part "registered common land" means--

(a) land which is registered as common land under the Commons Registration Act 1965 (in this section referred to as "the 1965 Act") and whose registration under that Act has become final, or

(b) subject to subsection (4), land which fell within paragraph (a) on the day on which this Act is passed or at any time after that day but has subsequently ceased to be registered as common land under the 1965 Act on the register of common land in which it was included being amended by reason of the land having ceased to be common land within the meaning of that Act.

(4) Subsection (3)(b) does not apply where--

(a) the amendment of the register of common land was made in pursuance of an application made before the day on which this Act is passed, or

(b) the land ceased to be common land by reason of the exercise of--

(i) any power of compulsory purchase, of appropriation or of sale which is conferred by an enactment,

(ii) any power so conferred under which land may be made common land within the meaning of the 1965 Act in substitution for other land.").

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, in moving this amendment, I shall speak also to Amendment No. 150, which is consequential.

Part I provides for a right of access to all common land registered as such under the Commons Registration Act 1965. The amendment will ensure that access to common land under this Bill is preserved where it is deregistered after the Bill is passed. Similar amendments were moved in Committee by the noble Baroness, Lady Miller of Chilthorne Domer. This meets her concerns.

We recognise that those concerns are real, albeit that 85 per cent of common land is likely to fall under one of the other classifications. Clearly, between Royal Assent and the time at which the rights come into effect, we do not wish to see some of the common land being deregistered. The amendment will prevent that leakage. I beg to move.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat 4:15 pm, 1st November 2000

My Lords, I am grateful to the Government for coming back with this amendment and for taking the opportunity to strengthen the position of commons and, later in the Bill, of village greens. I am glad that those areas have not been left unprotected, small though they may be. We believe that they are very important and, as I said, I thank the Government .

On Question, amendment agreed to.

Photo of The Earl of Caithness The Earl of Caithness Conservative

moved Amendment No. 5:

Page 2, line 21, at end insert--

("(3) It shall be the duty of the appropriate countryside body to set out clear definitions of moor, heath and down.").

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, your Lordships will have noticed that I moved the same amendment in Committee. I am emboldened to table it again in view of what the Minister said in Committee on 27th September at cols 896 and 897. He said that he would need to consider the anxieties expressed over the previous 31 minutes on the issue. Sadly, that reconsideration, which I hope he undertook, has not taken the form of a government amendment. I am therefore proposing the amendment again.

It is a major defect that there is no instruction on the face of the Bill for one body to come forward with a clear definition of "moor, heath and down". As we discussed in Committee, it is absolutely critical that we should know what the definitions are. Those definitions must be arrived at by a central body so that they are national definitions. They should not be drawn up by individual countryside bodies which, first, do not have the expertise to make the definitions and, secondly, will come up with a variety of different definitions.

As I said in Committee, the definitions of "down" and "heath" vary considerably in the Oxford English Dictionary and I shall not bore your Lordships by repeating them. However, because of the very wide range of definitions, it is extremely important to have them made by one body and clear on the face of the Bill. I beg to move.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, the necessity for an amendment to this effect, although perhaps not the amendment itself, was demonstrated by the reply of the noble Lord, Lord McIntosh of Haringey, to the debate on grassland.

The noble Lord, Lord McIntosh, appears to contemplate that the Countryside Agency will lay down certain definitions or instructions which will provide, for example, that improved grassland does not count as down. But under the Bill as it now stands the Countryside Agency does not have that power.

In the last resort, what is or is not "down" is a question of law and would be for the courts to decide. Neither the Government nor the Countryside Agency could say, "We have decided that improved grassland is not down and therefore we will not map it" if someone comes along and demonstrates that down does include certain areas where grassland is improved and therefore has to be mapped .

If the system intended is the highly desirable system which the noble Lord, Lord McIntosh, explained on Amendment No. 3, then he needs on the face of the Bill something which says that the countryside body shall define what is moor, heath or down and for that to be conclusive. If the Countryside Agency is meant to be the judge of that, that is very good but the Bill does not allow it because anyone dissatisfied with its decision would be able to mount a challenge in court and say that what is "down" is a matter of law and that something is not being mapped which is down or that something has been mapped which is not down.

I hope that the noble Lord will take away that point and think about it. Clearly, the system which the noble Lord, Lord McIntosh, outlined is a very sensible way of resolving this question but that is not what the Bill provides at present.

Photo of Earl Peel Earl Peel Conservative

My Lords, there were many occasions in Committee when matters were referred back to the access authorities by the Minister, in the hope that everything would be all right. In many cases that will be so, but as the Bill is all about access on moor, heath and down, in the absence of clear definitions people will be unclear. That applies not just to the access authorities but to those whose access land will be incorporated in the Bill.

We constantly return to the point about reducing conflict, appeals and litigation. If we do not get certain things right at the beginning, those characteristics will raise their ugly heads time and again. I hope that the Government will listen seriously to my noble friend, whose amendment is fundamental.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, clarification is required because it is not right to leave the matter. I am anxious that the Government place a duty on the countryside body to make clear definitions, at least as a starting point. In the absence of such definitions, there will be total confusion. It has been suggested in earlier debates that we are misplaying some of our apprehensions, but if the Minister will have definitions clearly set down, that would relieve a lot of pressure and dispel the apprehension felt by many noble Lords.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, Amendment No. 5 would require the countryside bodies to set clear definitions of moor, heath and down. Some comments implied that those definitions should appear in the Bill, which would not be practicable or sensible.

The amendment's aim of ensuring sensible definition criteria for identifying moor, heath and down is sound. The Countryside Agency and the Countryside Council for Wales are engaged in drafting such material. The National Countryside Access Forum, which includes landowning and user groups, has already discussed the agency's paper setting out draft criteria--a copy of which is in the Library. The agency needs to consult more widely before reaching a firm and final view.

The requirement on the Countryside Agency will be to identify and map downland, for example--then as a separate exercise, to consider what is excepted because of its use or the other qualifications in the Bill. Much of the discussion has confused those two processes. Clarity of definition will not necessarily relate to a particular piece of land, so would not overcome all the problems and complexities of finally defining what is access land and what is not.

We do not believe that it is necessary or desirable to set rigid definitions in the legislation. We need to leave the access agencies some flexibility in carrying out their tasks. The precise parameters for moor, heath and down require careful consideration. The current proposals relating to England--I believe that a similar process will be observed in Wales--will need to be reviewed in light of the pilot mapping exercises by the Countryside Agency. The Bill already requires the countryside bodies to determine whether land is open country by reference to various categories.

The mapping process, accompanied by extensive consultation and a right of appeal for those interested in the land, provides sufficient safeguards for ensuring that work is done in a sensible, consistent and equitable way. The amendment would constrain that exercise and is not useful, despite our shared objective of achieving clarity.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, before the Minister sits down, perhaps he will clarify the following point. If definitions are to be delayed and the Countryside Agency will decide them, does the same apply to many of the other matters? We may be passing a Bill when we do not know what will happen at the end because definitions will not have been made.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, those matters would not be defined if we accepted the amendment, because the noble Earl is only asking for a requirement that the agencies define moor, heath and down. The criteria are in the consultative paper to which I have referred but neither the Bill nor the amendment places the definitions on the face of the legislation. Such a requirement might constrain the way in which the countryside agencies undertake their work of mapping. Definitions would not resolve problems such as those affecting hayland and haylage--which relate more to exclusions.

From the debate and the noble Baroness's last intervention, it seems that people are looking for more than the amendment would deliver. The process in which the countryside agencies are engaged will produce a degree of clarity, but it is not sensible to define how to achieve it. I hope that the noble Earl will not pursue his amendment.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, will the Minister answer my point that if it is not for the Countryside Agency to define "downland", under what power in the Bill will the agency do as the noble Lord, Lord McIntosh, said and exclude improved grassland?

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, the noble Viscount is confusing two separate processes. The identification of downland will be based on the criteria in the agency's draft paper and be subject to the results of consultation. Then there is the process of determining whether certain activities or the nature of what would otherwise be downland--for example, arable land--should be excluded. That consideration should be treated separately and be dealt with by the agencies in accordance with the rules in the appropriate schedule.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, the noble, Lord, Lord McIntosh--

Noble Lords:

No!

Photo of Lord Bach Lord Bach Government Whip

My Lords, we must remember that we are at Report stage, not in Committee.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I agree with the Minister that it would be totally wrong to seek a definition on the face of the Bill. I take his point that there are two distinct processes for the Countryside Agency--identifying and mapping the land, then considering exceptions from the general provision. However, unless there are clear definitions, how will the land be identified and mapped in the first place? There is nothing on the face of the Bill to say that that work must be done by one body or that it has been done. If what the Minister says is correct--I have no reason to doubt it as I have seen the effect of what he said--surely that should go on the face of the Bill. It will lead to greater clarity for all who will suffer under or receive the benefit of this Bill.

However, I am concerned about one point made by the Minister. He said that we must not be too clear in our definitions because the Countryside Agency must have flexibility to do this or that or to change its mind. We must bear in mind that, on 9th October 2000 at col. 25 of Hansard, the Minister said that there will be no compensation paid to landowners and occupiers because everyone will be treated equally. The words now used by the Minister put that statement in doubt. If there is to be flexibility, some people may be treated differently from others.

For that reason it is important to have a clear definition. I agree that it should not be on the face of the Bill. However, I believe that it should be clear on the face of the Bill that there is an instruction to one body to make clear definitions for the whole country. Therefore I intend to test the opinion of the House.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 127; Not-Contents, 159.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Schedule 1 [Excepted land for purposes of Part I]:

[Amendments Nos. 6 and 7 not moved.]

Photo of Earl Peel Earl Peel Conservative 4:43 pm, 1st November 2000

moved Amendment No. 8:

Page 63, line 8, at end insert--

(" . Woodland or forest which is fenced against access land which adjoins or surrounds it.").

Photo of Earl Peel Earl Peel Conservative

My Lords, the Bill provides for a right of access to mountain, moor, heath, down and registered common land but it does not provide a right of access to woodland. The Government were strongly advised by the Forestry Commission, the Countryside Agency, English Nature and the Countryside Council for Wales to adopt a voluntary approach in improving public access to woodland. That is reflected in the provision for voluntary dedication of land to access in Clause 16.

However, there appears to be a lack of clarity, which must be overcome, about the treatment of woodland which either regenerates naturally on access land or is planted on such land before or after the new right comes into effect. As in general the Bill does not provide a right of access to woodland, it should follow that areas of woodland within parcels of access land should not be mapped as access land and that access land which subsequently becomes woodland--whether by natural regeneration or planting--should cease to be access land. It is not clear whether or not that will be the case. The best way to make the position of woodland clear would be to make it excepted land under Schedule 1 and the amendment is designed to achieve just that.

On Report, the Minister was asked whether the right of access would extend to common land which was wooded. He said:

"If it is woodland, which is not part of the increased right of access under the Bill unless it is voluntarily dedicated by the landowner, I imagine that the Bill would not give general access to it".--[Official Report, Commons, 13/6/00; col 807.]

If that is the case with common land covered by woodland, I suggest that it must be the same for any access land covered by woodland.

I accept that it would be impractical and undesirable to exclude access from small clumps of trees which have perhaps regenerated or been planted--that is why the amendment deals only with fenced woodland--but appropriate planting and natural regeneration should be encouraged. Indeed, English Nature was recently active in the North of England, involving itself with owners and occupiers to try to encourage such woodland on the edge or moorland. It has been most successful in that.

Furthermore, it should be realised that woodland is important for certain biodiversity action plan species, in particular the black grouse. Again, English Nature has been actively involved in trying to enhance that species through proper planting schemes. It should also be remembered that many woodland areas have been planted for opportunities for shooting. It is true to say that a large percentage of woodland has been developed with that specifically in mind.

I am concerned because any measures in the Bill which discourage small appropriate woodland planting would be a great shame. I suspect that if access provisions in the Bill were allowed to include woodland, much of it would cease. Therefore, I ask the Minister to consider the amendment. I hope that he agrees that it would be inappropriate for woodland on access areas to be included; in other words, the land should be exempt. I beg to move.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) 4:45 pm, 1st November 2000

My Lords, the noble Earl, Lord Peel, is right in saying that woodland is not added to mountain, moor, heath or down. In general terms, it is not covered by the Bill. However, it is possible that maps of open country could include small areas of woodland if they are part of a larger area of mountain, moor, heath or down. As the noble Lord, Lord Whitty, said in Committee, it would be a matter of discretion for the countryside body whether to exclude such pockets of woodland. My noble friend also pointed out that it is most unlikely that a fenced plantation would be mapped as part of open country. However, it would not be appropriate to except access from a naturally occurring woodland simply because, for example, it is fenced to exclude livestock.

The noble Earl, Lord Peel, made a valid point about biodiversity but the conservation provisions in the Bill should be introduced in order to protect biodiversity and conservation. Naturally occurring woodland is increasingly fenced to exclude livestock but that is not the same issue. There is no intention to extend the right of access to woodland by stealth. One is concerned only with access to mountain, moor, heath, down--some of which may be encroached upon by small areas of woodland--and common land, which historically is often woodland. The question is whether the woodland occurs naturally, as one would expect on common land.

I am not convinced that this amendment with its emphasis on fencing is appropriate in terms of its effect or necessity or the definition of the threshold between land which is open country and land which is not. I hope that the noble Earl will not press his amendment.

Photo of Earl Peel Earl Peel Conservative

My Lords, I received the answer that I expected. Perhaps I should take comfort from the fact that there will be flexibility. I understand the point which the Minister makes. Perhaps the noble Lord's most telling point is that there is no intent to extend access by stealth. I never thought that there was such an intent, but it is nice to know that that is the position. Having heard the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

moved Amendment No. 9:

Page 63, line 9, at end insert ("which curtilage shall be deemed to include all land within 30 metres of a building which is a dwelling-house").

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, this amendment turns to a different topic. Schedule 1 excludes from access land buildings and their curtilage. One often has a dwelling-house which has a garden or curtilage on one or more sides, but is not protected on its remaining sides and open land comes virtually to the door. In Committee a number of noble Lords expressed serious concern that it would be very disturbing for people who lived in such a house if, particularly at night, those who exercised the right of access came right up to the house. The aim of the amendment is to provide a minimum area of protection on all sides of the dwelling-house without detracting from the size of the curtilage.

My amendment proposes that the area of protection should be 30 metres, whereas Amendment No. 11 in the name of the Government suggests 20 metres. I assume that, in his customary spirit of compromise, the Minister will suggest 25 metres. However, I shall weaken my bargaining position by admitting that if the noble Lord does not do so I shall not divide the House for the sake of 10 metres. I beg to move.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, am I correct in believing that if the Minister speaks to his amendment I cannot make a contribution?

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, to assist the House, if any noble Lord wishes to speak to a group of amendments he should do so. I want to clarify the position. I believe that if the Minister moves a lead amendment other noble Lords may speak thereafter. I understand that the noble Baroness wishes to speak now.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, if I wait for the Minister to speak, I cannot speak myself. I understand that I can speak. I am trying to be terribly correct. I rise to support the amendment moved by the noble Viscount. As the noble Viscount will not persuade the Minister to accept 30 metres, I understand that he is content to accept 20 metres. In rising to support the amendment, I thank the Minister for tabling a government amendment which deals with a problem which was debated earlier.

I should like to clarify two matters. Amendment No. 11 in the name of the Government seeks to insert paragraph 2A, presumably after paragraph 2. The provision as it now stands deals with,

"Land covered by buildings or the curtilage of such land".

Presumably, the Government intend to include land within 20 metres of a dwelling. I seek clarification on the difference between paragraph 2A and what stands in the Bill now.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, can we not hear the Minister speak to his amendment before we speak?

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench

My Lords, I intervene briefly. We have a good number of amendments to deal with and I do not want the Minister to fail to complete his century before close of play. This amendment is a good example of where the Bill is lacking in certainty, and clarification can be achieved. That has been the theme of the whole debate at Report stage so far, and no doubt we shall return to it en masse in relation to other issues. The Bill as it stands makes no specific reference to dwelling-houses in the excepted land, although it refers to tramways, golf courses and what have you. Obviously, it is important that those who live in the country are clear as to where access land around their dwelling-houses begins and ends. The government amendment before us is excellent. I would have preferred 30 metres, but I am content with 20 metres.

As to the point raised by the noble Baroness, Lady Byford, I am content with the way in which the Government have presented the amendment with a specific heading to deal with dwelling-houses, leaving other buildings to be dealt with separately. That is an advantage from the point of view of presentation. In any event, I believe that, except for those people who do crosswords, the great majority of the population do not know what a curtilage is. The government amendment is clear and meets the point, and I welcome it.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, as the noble Viscount, the noble Baroness and the noble Lord have all indicated that, with varying degrees of reluctance, they accept 20 metres, I shall not put the case for 20 versus 30. The government amendment responds to indications at previous stages of the Bill that there was a problem about the security of people who live in isolated cottages and other places in the countryside. Although I was reluctant at the previous stage to concede the point on the basis that most people live fairly close to a right of way, I recognise that isolated dwellings give rise to particular problems. Therefore, we believe that it is sensible to place a 20-metre circle around such houses. We have confined the amendment to dwellings. The question as to whether it should be extended to other buildings arises on the next group of amendments. In case the noble Earl is in any doubt, I shall resist it.

I believe that I have answered the point raised by the noble Baroness. The amendment relates specifically to dwellings, whereas some of the other provisions relate to all buildings. I shall move my amendment at the appropriate point, and I hope that the noble Viscount will withdraw his amendment.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

I am amazed that the Minister has not given me 25 metres. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Earl Peel Earl Peel Conservative

moved Amendment No. 10:

Page 63, line 9, at end insert ("and in any case the curtilage shall extend for not less than 20 metres from any such building in every direction").

Photo of Earl Peel Earl Peel Conservative

My Lords, I am grateful to the Minister for a clear indication as to his reaction to my amendment. I welcome the fact that the Government have taken on board the points raised in Committee. We now have protection for dwelling-houses based on 20 metres, which is probably quite adequate. I acknowledge that in Schedule 1 access to all land covered by buildings, or the curtilage of such land, would also be prohibited. I accept that those two separate issues are important and go some way to address the problem.

However, there are many cases in which buildings have no curtilage and some dwelling-houses back directly on to access land. Particularly at night, very often those dwelling-houses cannot be distinguished from a barn due to planning restrictions or design standards. In a number of cases at night people will be unable to distinguish between a dwelling-house and a barn. That is why my amendment goes further and suggests that there should be a 20-metre restriction around all buildings.

There is also a security issue. Many barns and buildings contain valuable machinery--all kinds of agricultural hardware--and stock. It will give people a greater sense of security to know that those people exercising their rights under the Bill will keep 20 metres away from all such buildings. Therefore, it is not an unreasonable amendment.

I have another point; namely, with the additional access that the Bill will provide, the liability to owners and occupiers of trespass on land which is not access land will be enhanced. On the back of that I suggest that there will be increased costs. Although it is somewhat detached from the points that I am making, perhaps we should bear that factor in mind. My amendment will allow for an exclusion area of 20 metres around all buildings. That will give people the additional amount of security which they deserve. I beg to move.

Photo of Lord Greaves Lord Greaves Liberal Democrat 5:00 pm, 1st November 2000

My Lords, I intended to speak on the previous amendment. I failed to do so before it was withdrawn. But the principles are the same on this amendment.

I speak as someone who lives in a house where people can walk along the back wall of what is part of the house. So I do not get terribly worked up about these matters. I understand that in isolated separate dwellings in remote places people may become concerned. That is not a major problem, since the number of dwellings which will be affected is actually quite small. Clearly, some will be affected.

I have closely scrutinised the 2½-inch maps of the Pennines and the North Yorkshire moors. I can find very few dwellings or buildings which would be affected. As was discussed in Committee, in practice most of the buildings have rights of way quite near them and often going directly past them. So there is no major problem in gaining access to the access land.

There are two problems with the amendment. First, the noble Earl, Lord Peel, said that people will find it difficult to distinguish between what is and what is not a dwelling, particularly if a dwelling is actually a building in which people are living as opposed to a cottage or indeed an old farmhouse in which people used to live. Some thought is needed on how that matter can be dealt with. However, I would not support the noble Earl's proposal that all buildings should be included. That would be unnecessarily restrictive.

There is a second, more difficult problem. How will people know where the boundary of access land lies if there is a circle 20 metres around dwelling-houses, particularly if it is not clear whether or not the buildings are lived in? The Bill rightly accepts the principle that in many cases the boundaries will be drawn along obvious features on the ground--banks, walls or natural features--rather than the precise features at the edge of what may be moor, heath and so on, as opposed to kinds of pasture. That principle is rightly established in the Bill. It is necessary for people to understand where the boundary lies of the land to which they are entitled to have access.

What is now proposed is an entirely arbitrary boundary. It will almost never be the case that a boundary 20 metres around a dwelling will coincide with any natural features. That may encourage people to erect fences where fences do not exist at the moment. That may be detrimental to the local landscape. It may be that they are not able to do that because of the constraints in the area. I am trying to find out how the boundary of access land will be established when that access land is an arbitrary 20-metre circle around a building which does not coincide with anything on the ground.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, the amendment deals with a small but important point. I base what I say on my own experience.

On a hill farm one often has a dwelling-house and then farm buildings 50 to 100 yards up the hill. If the farm buildings contain cattle there will probably be straw storage as part of the building. There will also be straw within the building. The great fear for those in the dwelling-house is that the people walking about at night with torches might set fire to that building. A long time ago that happened on three successive occasions on land for which I was responsible. If it was known that people had to stay outside a boundary, and one saw torches within less than 100 yards of one's house, one would know whether those people were walking lawfully across the land or whether they were trying to get into the building. It would be a great advantage if Amendment No. 10 were accepted. It is a small point. But it would simplify the whole arrangement in the minds of the public, as the noble Lord, Lord Greaves, said.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

My Lords, I wish to make two points in support of the amendment. First, of what benefit will it be to those people who want to enjoy the countryside to be able to walk around the buildings? They are there to enjoy the countryside. That is why we are giving them access to it.

Secondly, before the Minister tells me to go back to Northern Ireland--that is not relevant to this argument and I realise he did not do that last time--perhaps I may suggest that we have something from which the rest of the United Kingdom might learn just a little. Because of our problems in Northern Ireland, all military and police personnel have had access to the countryside throughout the hours of darkness and daylight.

It is extremely important that people do not surprise animals within the area of farm buildings. The noble Lord, Lord Greaves, mentioned rights of way. That is entirely different. Animals get used to routine. They will get used to a football match or a quarry blasting in the countryside. They will also get totally used to a right of way where children laugh and shout and to whatever else might happen on that right of way.

However, they are very susceptible to being surprised. In the farm buildings there will often be cattle--especially in wintertime--enclosed in close confines within metal bars, standing on slippery floors because of slats and so on. There may be sheep which are either about to lamb or have just lambed. So there may be lambs all over the place. When they are surprised, ewes abort their lambs and cows abort or give birth to dead calves.

I am not producing these facts out of a hat. We have had hundreds of thousands of pounds worth of claims. Those noble Lords who have served in Northern Ireland, especially the noble Earl, Lord Arran, will know perfectly well that the claims arose as a result of people surprising animals at night. I often patrolled in Fermanagh at night. We were all farmers so we had some idea of what would happen. When you came up to a farm in the dark you had to be incredibly careful. Apart from anything else, animals gave you away if you were trying to be covert.

As I said, we have had claims for damages. I simply do not see why people who want to enjoy the countryside should be allowed to enjoy the farmyard when it is none of their business and there is an inherent danger. Indeed, if anyone is hurt, there will be a claim the other way. I support the amendment.

Photo of Lord Marlesford Lord Marlesford Conservative

My Lords, I support my noble friend Lord Peel. The Government should look at this amendment as a way of making the legislation acceptable to the rural community. We are enacting a very big change and, in general, as the Government know, I support it. But it is important that we should not unnecessarily antagonise people who live and work in the countryside. There is an increasing amount of rural crime of every kind, particularly thefts from farm buildings--tractors, batteries and every type of small tool. It is not a matter of whether there is a specific line--a circle of 20 metres--around a building. What my noble friend seeks is something in the statute which makes it possible for the land occupier, owner or farmer to challenge someone who perhaps is up to no good without that person being able to say, "I have a perfect right to be here".

Such challenges would not be made very often. Ordinary, genuine walkers who strayed within the 20 metres--it would be much easier if we said 100 yards as most people in my part of the country would understand that a great deal better--would not be a problem. It is a matter of making the legislation "country friendly". If that is not done, there is a danger of causing antagonism that could be avoided.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, noble Lords have set out a number of reasons why the amendment of the noble Earl, Lord Peel, makes some sense, particularly if we are to have night access. It is hard to prejudge exactly where we should go on this issue, but I understand the arguments that have been put forward. How will people tell whether a building is a dwelling-house or a farm building? I understand also the argument about animals being frightened. I look forward to hearing the Minister's reply to the amendment.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions 5:15 pm, 1st November 2000

My Lords, I do not accept the arguments that have been put forward. I indicated earlier that I was reluctant to give the concession in relation to the 20 metres. I did so because in many circumstances the most obvious way for people to move around access land would involve going along areas that are fairly close to buildings. That, regrettably, is the fact in many parts of the country. There is therefore a balance to be struck. I was persuaded that the protection and the feeling of security of people who lived in houses that were isolated but would be passed fairly close by people who were using the area overrode the need to provide walkers with the most obvious path from which otherwise they would have to divert unless it was a right of way. I repeat the point that many people in the countryside will be passed considerably closer than the 20 metres by rights of way.

I have accepted the balance of protecting rural households in isolated dwellings where there is not a right of way close to them. That is common sense. However, the noble Earl's amendment suggests that every shed or isolated building, whether used or unused, should be surrounded by a 20 metre exclusion zone. That is a serious incursion into many areas where the obvious path will be within the 20 metres, particularly as regards access higher land. I therefore suggest that the balance suggested by the noble Earl is not appropriate.

The noble Viscount, Lord Brookeborough, said that we are talking about farmyards. We are not talking about farmyards. In most cases farmyards will be excluded, but in any case we are talking here about isolated buildings around which there is not a curtilage greater than 20 metres and there is not a garden or cultivated area. Therefore, we are not talking here about access to what, in common parlance, would be regarded as a farmyard. We are talking about protecting the privacy and security of people who live in isolated cottages. We are not talking about denying the right of passage to every shed that happens to exist in the countryside. The noble Earl is pressing further unnecessary exclusions from the Bill. I do not think that we should accept them.

The noble Lord, Lord Greaves, was concerned about how people would know. In relation to dwelling-houses, it would be one of the simpler rules. People would know that if it was a house they should not move within 20 metres of it. That would be common right across the countryside. If the garden was larger than 20 metres, they would keep that far away as well. That is a fairly straightforward rule which can be justified to walkers. The idea that every building could similarly be protected is not appropriate and would be a serious incursion into the amount of land that was available. I therefore hope that the noble Earl does not pursue the amendment and sticks with the protection of country dwellers rather than of every building that happens to be in the countryside.

Photo of Earl Peel Earl Peel Conservative

My Lords, I received the answer from the Minister which he told me in advance of moving the amendment I would receive. I thank him for that. At least he has been consistent.

The Minister said that he was reluctant in the first place to give 20 metres. He may be interested to know that in their right to access legislation the Danes give 150 metres. But I suspect that the Government are not particularly interested in what the Danes do. That apart, the noble Lord said that my amendment would be a serious incursion into the amount of land that was available. I do not think that that is so. My noble friend Lord Marlesford was absolutely right. We are looking for something that will make people realise that the legislation is not there to drive a wedge between town and country people. That is an important point, but it is one that is so often ignored.

I congratulate the noble Viscount, Lord Brookeborough, on opening the night-time access debate very successfully indeed. He made some extremely telling points. The Government should heed carefully the information given by the noble Viscount from his experiences in Northern Ireland.

I was interested in the comments made by the noble Lord, Lord Greaves, and the noble Baroness, Lady Miller, from the Liberal Democrat Benches. I think I am right in saying that they have a degree of sympathy for the amendment. I shall take the opportunity of discussing the matter further with them. Perhaps we will come back at the next stage with a joint Conservative/Liberal Democrat amendment. That would make an interesting move forward! Given those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

moved Amendment No. 11:

Page 63, line 9, at end insert--

("2A. Land within 20 metres of a dwelling.").

On Question, amendment agreed to.

Photo of Baroness Byford Baroness Byford Conservative

moved Amendment No. 12:

Page 63, line 10, at end insert ("or allotment").

Photo of Baroness Byford Baroness Byford Conservative

My Lords, this amendment provides for a small addition which I hope that the Minister will be able to accept. On studying the descriptions and definitions here, we felt that allotments--which are particular and form a peculiar type of land use--should be covered by the regulations in the Bill. I beg to move.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, as a firm supporter of allotments, I understand why the noble Baroness has tabled this amendment. Given that the House has shown itself keen on definitions this afternoon, does her proposition cover allotments which are defined as such? If someone digs a patch of land 12 metres square and plants a few Brussels sprouts, would that qualify?

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I hope that it is in order for me to respond to the noble Baroness. I had assumed that the amendment would cover what are classed as "acknowledged" allotments rather than any patch of land which has been dug. Official allotments are registered and it is those to which I refer in this amendment.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, if the noble Baroness is referring to registered allotments rather than to the kind of circumstances outlined by the noble Baroness, Lady Miller, or to areas where, perhaps historically, allotments were sited but have now fallen into disuse, such as in some moorland areas as a result of wartime or other cultivation, then I have some sympathy with her amendment. We shall need to tidy it a little in that respect. If the noble Baroness would allow me that leeway and withdraw her amendment at this stage, I shall then consult with her between now and Third Reading.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I am most grateful to the Minister for that response. Many people are very keen on allotments and an amendment to the Bill would provide a solution to this small problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

Photo of Lord Northbrook Lord Northbrook Conservative

moved Amendment No. 13A:

Page 63, line 21 (leave out "covered by pens") and (insert "of under 10 hectares in size").

Photo of Lord Northbrook Lord Northbrook Conservative

My Lords, I wish to move Amendment No. 13A and speak at the same time to Amendment No. 13B. In doing so, I should declare an interest as a landowner who does not own livestock, but who rents out grazing to a local farmer.

The background to these probing amendments is threefold. First, they address the important issue of dogs fouling pasture. This presents a serious potential problem for cattle. If dog faeces gets into grass cut for hay, it can cause potentially serious health problems. Secondly, inclusion of these areas will, as has been mentioned in discussions on previous amendments, make the task of mapping much easier. Thirdly, the lack of disturbance will be of benefit to ground-nesting birds in permanent pasture. I beg to move.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, I think that the noble Lord may be taking us forward, in part, to the rather lengthy series of groupings that deal with dogs, which we will discuss later. However, the noble Lord's amendment would exclude walkers with or without dogs. For that reason, I would resist it. Plenty of perfectly viable access countryside comprising land of more or less than 10 hectares already exists. Walkers on such land coexist with grazing livestock. It would be inappropriate to exclude all of that land from walkers. I therefore could not accept the amendment.

The issue of walkers with dogs raises different and more widespread concerns. The Government have already ensured that the Bill contains certain restrictions in relation to dogs. These require walkers to keep dogs on leads while on access land during March to July and at all times in the vicinity of livestock. The phrase "in the vicinity" would certainly include within a field of 10 hectares. Perhaps we should have that discussion when we discuss the amendments relating to dogs. However, because this amendment is more widely drawn, I would ask the noble Lord not to pursue it.

Photo of Lord Northbrook Lord Northbrook Conservative

My Lords, I thank the Minister for his reply. I shall read carefully his response in Hansard. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13B not moved.]

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, in moving this amendment, I shall speak also to Amendment No. 17. These government amendments recognise the special needs of the racehorse training industry.

We accept that there are real concerns about how best to reconcile the new right of access with the training of racehorses on land which qualifies as access land. We have listened to the debates in this House and to the industry. As a result, we have brought forward these amendments in order to target action where it is needed.

I believe that there is common ground between the Government and the racing industry that the exclusion of access from training gallops should not be more than is required to ensure the safety of employees, their horses and the public. These amendments will therefore provide for access to be excepted from land used for training racehorses between the hours of sunrise and midday and at other times when the land is being used for that purpose. I beg to move.

Photo of The Earl of Carnarvon The Earl of Carnarvon Crossbench

My Lords, I should declare an interest as an owner and breeder of racehorses. The Government have listened carefully to the views of the racing interests as regards access to these areas. I am extremely grateful to the Minister and his advisers for the helpful way in which they have looked at this problem and come forward with their amendments.

We were considering an extremely dangerous situation where the public at large might quite innocently walk across land used for racehorses in the middle of an exercise during the early hours of the morning. Someone could easily have met with serious injury. I believe that the amendment will be helpful to trainers, their staff, riders and jockeys.

I believe that it may interest noble Lords to know of the statistics at Newmarket, supplied by the Jockey Club land agent. Some 24 hospitalised cases are reported every year, along with one death--and those incidents do not in any way involve the general public. If someone should stand up after sleeping behind a bush just as horses--in particular two year-olds--walked by, the horses would scatter. Serious damage would probably be incurred by the horses but, more importantly, serious injury could easily be caused to the riders.

What the Government have suggested is excellent and will be welcomed by all sections of the racing industry.

Photo of Baroness Trumpington Baroness Trumpington Conservative

My Lords, my name was added to the amendment tabled in Committee which has led to this most welcome pair of government amendments. Perhaps I may add my thanks. This move will give a great many people pleasure and will probably save many lives.

Perhaps I may ask the Minister a question: are point-to-point courses to be covered by the same conditions that are to be applied to racecourses and gallops?

Photo of Baroness Byford Baroness Byford Conservative

My Lords, from these Benches I wish to express my thanks to the Minister for tabling these two amendments. I should like in particular to compliment the Minister on including sub-paragraph (b) to new Paragraph 13 in Amendment No. 17. As noble Lords know, some training takes place in the morning, while some takes place in the afternoon. The Government have recognised this and have offered the required flexibility. That is much appreciated.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I apologise that I did not intervene before my noble friend rose to speak. I also attended the meeting arranged by the noble Lord, Lord Whitty, to consider this subject. I appreciated enormously the sensitivity with which he listened to the discussions.

Perhaps I may ask a question. My contact on this subject is a trainer with gallops in the Lambourn area. He told me that severe problems can arise if bottles or cans are dropped on the gallops because they can hurt the horses very badly. Does the Minister have it in mind to ensure that any code of practice or guidance which is issued to walkers will point out the importance to the welfare of horses of not dropping litter in areas which are used as gallops?

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) 5:30 pm, 1st November 2000

My Lords, let me to try to respond, with thanks, to the comments that have been made.

So far as concerns point-to-point meetings, my understanding is that if such a meeting is to be held on access land, an application would be made for the closure of that land for that purpose during the period that the point-to-point is taking place.

Of course, not all training gallops will be mapped as open country for the purpose of right of access. I would guess that most gallops would take place out of open country because their management and setting would not qualify them to be mapped as mountain, moor, heath or down. We have made this provision for the minority which fall into that category.

As to litter, bottles and cans and so on are litter. The dropping of litter is an offence in many places, not only on access land. The same regulations will apply to access land as to other places.

On Question, amendment agreed to.

Photo of Lord Hardy of Wath Lord Hardy of Wath Labour

moved Amendment No. 15:

Page 63, line 24, at end insert--

(" . Land within a recognised nature reserve where public access could destroy or damage protected fauna or flora.").

Photo of Lord Hardy of Wath Lord Hardy of Wath Labour

My Lords, Amendment No.15 seeks to include in the list of excepted areas,

"Land within a recognised nature reserve where public access could destroy or damage protected fauna or flora".

I do not wish to detain the House for long. Noble Lords on both sides of the House are aware of many of the arguments that could be advanced in support of the amendment. We have, for example, on frequent occasions referred to the problems in regard to ground-nesting birds and the way in which they can easily be disturbed and their breeding patterns ruined. It is true that many farmers and landowners take a sympathetic view towards the survival of these species--but not all. Sometimes it is desirable that birds should live and breed in a nature reserve.

It is even more important for plants. In a communication this morning from Plant Life--one of the plethora of conservation bodies--I was reminded that many counties in England have seen almost one species of wild plant disappear each year. Many noble Lords may think that is certainly the case in the arable areas of southern and eastern England, but in Cumbria, in the last century, at least 48 species of wild plants have gone.

The people who will enjoy the access provided in the Bill will not wish wantonly to trample or uproot such plants, but the plants could be endangered by their movement, especially if they are unaware of where the plants are. The difficulty is that if one had a rare plant and drew it to the attention of walkers, 99 per cent of them would recognise the importance of ensuring that that plant survived. But the other 1 per cent would recognise that, by its very rarity, it has value, and they would uproot it. Our experience with limestone pavements has shown that quite a lot of people have made a great deal of money by ravishing that important part of our natural heritage. Such people might decide that the uprooting of a rare wild plant was an equally profitable venture.

At the same time, however, people need to be able to see the rare birds and the rare plants. It would be therefore a good idea for the nature reserves to enjoy a degree of protection that allows them to steer and guide ramblers and show them, or let them see, where the rare plant or the rare bird may be. If there is no such protection, ramblers will be able to walk willy-nilly across nature reserves and perhaps more harm than good will be done.

I recognise that the Government are extremely committed to the causes of biological diversity and the survival of the species. Adding this provision to the Bill would strengthen the Government's reputation in that area.

I am not suggesting--the amendment does not suggest or require--that the whole of sometimes very extensive nature reserves are protected. But the part of a nature reserve which contains the nest of a rare bird or a rare species of flower should be protected. I do not say that rare species should be protected to the point where they cannot be seen. Those noble Lords who visited RSPB reserves in Scotland will have seen what can be done in this respect. The public are able to watch the osprey there because the reserve is organised in a way which enables them to do so. The provision in the amendment would encourage such opportunities.

I hope that the Minister will feel able to accept the amendment. If he is unable to do so, I hope that he will bring forward a version of the amendment which will provide this opportunity. Too many species--particularly flora--are now hanging on by the skin of their teeth. They need all the help that can be given if they are to survive. This seems to me to be a useful way of contributing to their survival. I beg to move.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

My Lords, I support the amendment. Perhaps I may offer the Government a suggestion. We have heard already that the MoD has sanctuaries in many places--on Salisbury Plain, at Lulworth Cove and so on--and that it is one of the best custodians of conserved land in this country. If we look at the way in which it manages such areas, we will find that the MoD has become very flexible in its understanding of which areas people should be kept out of and which areas they should be allowed into. After all, the MoD has full access to training areas at all times of the day and night, but there are parts of every training area in Great Britain to which soldiers are not permitted access because of the value of the flora or fauna to be found there, or for some other reason. I support the amendment.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, we on these Benches support the thrust of the amendment of the noble Lord, Lord Hardy. He admitted that his amendment may not be perfect and he has indicated that he is willing to allow the Minister to come back with a different version.

The amendment concerns "a recognised nature reserve". Perhaps one of the Government's fears is that anyone, anywhere, could say that a site should be excepted land. Many voluntary organisations are working to preserve and conserve the countryside. If this is not acknowledged to be a problem, the fear is that that support may dwindle. That would be a great shame because individuals make contributions either through the practical running of the centres or through the money they raise.

The noble Lord seeks some form of protection within nature reserves which enables them to be enjoyed by people, but on an organised basis. If I understand the noble Lord correctly--which I hope I do--I am happy to support the amendment.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, the purpose of the list of exceptions in Schedule 1 is to exclude public access from land which may be mapped as open country or registered common land but to which a right of access should none the less not apply--for example, buildings and their curtilages. Nature reserves do not fall into that category.

English Nature has powers stemming from the National Parks and Access to the Countryside Act 1949 to designate land as a national nature reserve or a local nature reserve, with the aim of securing protection and appropriate management of the most important areas of wildlife habitat. Many reserves have public access. Indeed, they positively encourage it, as my noble friend Lord Hardy of Wath said. With relatively few exceptions, access and wildlife can co-exist without significant problems.

My noble friend referred to public access in Scotland to see the osprey. There is a marvellous bird sanctuary near the Llyn Brianne reservoir in Wales where the same applies. There should be no automatic presumption that the conservation of such sites is incompatible with access, particularly when account is taken of the modest nature of the new right and the restrictions that will apply to it.

If a reserve has been mapped as open countryside or registered as common land and there are particular problems with access, the Bill specifically provides for closures or restrictions on grounds of conservation. Clause 24 provides for the relevant authority--the Countryside Agency in England and the Countryside Council for Wales, or in national parks, the relevant national park authority--to issue directions excluding or restricting access for reasons of nature conservation. In doing so, the authority must have regard to the advice of the appropriate statutory advisory body: English Nature for land in England. We have made provision for any case to be referred to the Secretary of State (or the National Assembly) if English Nature (or its Welsh equivalent) still has concerns.

There is no question of compromising our conservation objectives in favour of access. Part III of the Bill reflects our commitment to the protection of wildlife and nature conservation. We are determined to ensure that vulnerable habitats are protected as necessary. But the impact of access on wildlife must be put in perspective: most designated reserves have some form of access and this has not given rise to significant problems.

The noble Viscount, Lord Brookeborough, raised the issue of MoD land. There is a variety of factors. It is certainly the case that the MoD is very proud of some of the work that it has done. On occasions, it may be because slightly less mechanised and less intensive forms of farming take place on some MoD land. However, I agree that the MoD has a good record.

The Government recognise that there may be cases where conflicts arise and where access needs to be restricted, or even excluded altogether. I assure my noble friend Lord Hardy that the Bill provides for that. We therefore believe that a blanket exclusion of nature reserves is not the right approach; it is neither needed nor justified. I hope that I have thoroughly convinced my noble friend, and that he will not feel it necessary to press his amendment.

Photo of Lord Hardy of Wath Lord Hardy of Wath Labour

My Lords, I am grateful to my noble friend, as I am to the noble Baroness, Lady Byford, and the noble Viscount, Lord Brookeborough. Before responding to my noble friend, perhaps I may say to the noble Viscount that I am well aware of the contribution made on Ministry of Defence land. The MoD once embarrassed me, on the day before I was to present the Conservation of Wild Creatures and Wild Plants Bill. The Bill included the protection of the natterjack toad, which is extremely rare. The officer in charge in the Aldershot-Salisbury area contacted me to say that they were just about to release several thousand natterjack toads that they had bred on Salisbury Plain. I asked him to treat it as a matter of great confidentiality; otherwise, my Bill might have been in peril the next day.

One of my anxieties has not been entirely relieved by my noble friend's response. I accept the reference to the 1949 Act. However, one of the difficulties in this whole area is that the location of species needs to be kept secret; otherwise they will be stolen. I do not know whether there are any Snowdon lilies left in Snowdonia, but they were among the rare species that were protected under my Bill, which became an Act in 1975. One of the reasons for their decline was that people had gone round stealing them.

If the matter is left to English Nature, it is possible for the risk of publicity to be greatly enhanced. If it is left with the conservation bodies, they can be a little more discreet. That is one reason why the lady's slipper orchid still survives, when it was down to only one plant in 1976.

If we are to ensure the survival of certain natural species, and the guarantee of consistent support for biological diversity in a sensible way, it may well be that a little more responsibility or influence should be accepted on the part of the voluntary bodies--which work happily with English Nature and will continue to do so while my noble friend Lady Young is involved.

I should like to clear up one misapprehension, which my noble friend might acknowledge. The amendment relates to land within nature reserves. I did not intend it to apply to the whole of a nature reserve--because some are very large indeed. But there may be pockets of a nature reserve where there is a sudden recognition or identification of an extremely rare species. Fast action may be needed, and may be more likely to come about if those who are responsible for the reserve can respond immediately to that need. The amendment would provide a greater degree of flexibility. Perhaps my noble friend and her assistants will re-examine the whole question of the need to maintain confidentiality and the ability to respond urgently should the need arise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of The Duke of Montrose The Duke of Montrose Conservative 5:45 pm, 1st November 2000

moved Amendment No. 16:

Page 63, line 24, at end insert--

(" . Land subject to a management agreement under the countryside stewardship scheme, or other environmental protection measures, where the Ministry of Agriculture, Fisheries and Food finds that access is, or liable to be, damaging to the purposes of the scheme.").

Photo of The Duke of Montrose The Duke of Montrose Conservative

My Lords, I listened with great interest to the previous debate. It seems that the noble Lord, Lord Hardy of Wath, and I are approaching a similar problem, but for different reasons. I must first declare an interest as a farmer who, for the past four years, has benefited from one of the earliest agri-environmental schemes.

I am afraid that there was a slight difficulty in compiling the Marshalled List. Last night, I asked for the term "agri-environmental" to be introduced into the amendment. As a result of some strange state of confusion, the term was not actually included. My amendment should include not merely "environmental", but "agri-environmental" in order to focus it more closely.

These schemes enable the Government to give financial assistance to farmers for the management and improvement of areas in natural and environmental terms. They can be of particular assistance to organic growers. These can be old hay meadows or downland, heather, hedgerows, water-meadows, sand dunes, and so on. The regulations governing the schemes sometimes include a requirement for the exclusion of livestock at certain times of the year. The schemes also give assistance in the maintenance of walls and hedges.

Any farmer entering into one of these schemes has to sign up to a management agreement which, in most cases, can be for 10 years. During that time he will receive the appropriate annual payments, which are generally in the region of £2,000 to £5,000 per annum. Both the farmer and his successors are bound by the agreement.

Quite a number of farmers are glad that their land is not included in a nature reserve; they find that that restricts their activities in ways that they may not fully appreciate. But at the same time, they do not have the safeguards, referred to by the Minister, which are available to people whose land is in a nature reserve for the control of the public when a conservation issue arises.

The legal basis of the scheme is laid out in a statutory instrument--the Countryside Stewardship Regulations 1998. The problem that my amendment attempts to address is that, if a farmer is in breach of any of the conditions subject to which the grant was made, the Minister is liable not just to withhold future grant but to recover any grant already paid to him, with a possible penalty of 10 per cent over and above that sum. If access has had a detrimental effect on the conditions laid down in the management agreement--and that may only be discovered, say, six years after the scheme was put in place--the amount that could be reclaimed could total £33,000.

Access may damage some of the primary purposes of the scheme, but many of the secondary purposes are aimed at the encouragement of wildlife and rare species of plants and insects. Access could also have an effect in that area. The noble Lord, Lord Hardy of Wath, referred to the problems that can arise from access within nature reserves. In these areas, the situation might be the same. At present, the farming press speaks of the amazing recovery of the stone curlew in East Anglia due to improved farming practices. It would be a great pity if any of that benefit, which involves public investment, were lost. The other aspect is that the MAFF may want to take this loss of benefit into the argument of eligibility for grants, especially when considering new applicants. I beg to move.

Photo of Lord Ampthill Lord Ampthill Crossbench

My Lords, I should point out to the House that the word, or half-word, "agri-" should be added to the beginning of the word "environmental" in line 2 of this amendment.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, with this amendment we return to the question of balance within the countryside. I believe that existing management agreements could be put in jeopardy and penalty clauses invoked as a result of this Bill, which would be detrimental to the conservation aspects of the agri-environment and country stewardship schemes. Therefore, in my view, it is totally wrong for one department within government to be encouraging farmers to go in one direction, while the DETR will, with this Bill, be quite unintentionally undermining the efforts of MAFF to encourage farmers to improve their farming practices and adopt more conservation-oriented ways of carrying out their work. Those are the reasons behind my support for my noble friend and this amendment.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, as a result of this Bill reaching the statute book, I hope that MAFF will take an overall look at the way that its schemes and regulations impact on farmers and consider how that ties in with this legislation. Previous speakers have made some interesting points. In Committee, I raised the point several times that the new hill farm allowance scheme has no provision for taking into account the forthcoming impact that open access will have. Indeed, it is not even mentioned in the criteria. Therefore, I add a plea from these Benches that MAFF should be asked to consider the impact of this Bill. It should also give some thought to the way that its schemes and grants tie in with the kind of objectives that we are working towards under this legislation.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Conservative

My Lords, I wish also to support this amendment, which I believe to be of tremendous importance. It is of particular importance to Wales because we have what is known as the tir cymen scheme, which is similar but rather better, so I am told, than the stewardship scheme. It is run by the Countryside Council for Wales. Therefore, one assumes that the council would have a power to exclude any land that is under a management scheme, if it thought that the conditions would be vitiated by its declaration as "open access land".

I stress the importance of this matter because the these management schemes are becoming a vital source of income, especially for hill farmers. We are aware of what the average farm income is in England--I believe that it is about £10,000 a year--but it is £5,000 and decreasing in Wales. Therefore, such management schemes are very popular with the farming community because they make a substantial contribution to farm incomes.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, I rise to express my support for my noble friend's amendment. We have had a number of discussions on this matter, which clearly show that the impact of this Bill will cross departmental boundaries on many fronts. I believe that the issue now before us highlights the situation because of the sensitivity of the agricultural industry at present. I look forward to hearing some reassurance from either the noble Baroness or the noble Lord that they can really turn on some joined-up government.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I can reassure the noble Lord, Lord Glentoran, that there will of course be joined-up government; indeed, it is a fundamental part of the Government's approach to all parts of this Bill.

I should like also to reassure all speakers in the debate that Chapter II of the Bill already makes full provision for the exclusion or restriction of access where that is necessary in the interests of land management or conservation. All the examples that have been referred to would fall within that category, were that to be the case. Therefore, it is extremely important for me to reassure noble Lords that there are already sufficient mechanisms in place in the Bill to protect the interests of countryside stewardship sites, as for any other land.

It is inconceivable that a farmer would be held liable for any breach of an agri-environmental agreement, if the breach arose as a result of access. However, as I said, the mechanisms exist within the Bill to ensure that such schemes will not be put at risk in the first instance because of access. I agree with those who have spoken in this debate that the existence of such schemes is very important in many areas, especially in the north of England and in Wales. They are also crucial to the objective of protecting the countryside. With those reassurances, I hope that the noble Duke will not find it necessary to press his amendment. I can assure him that we are fully aware of the importance of the subject to which he spoke.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, I was most interested in the noble Baroness's response. I believe that I am reassured. However, before she concludes, can she confirm that, if I were an owner of land--which I am not--that was subject to a stewardship scheme, I could approach the Countryside Agency, tell the officials that the land was under such a scheme, show them a map and then it would automatically become excluded land?

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I am sure that the noble Earl does not expect my answer to be "yes" to that question. However, the answer would be "yes" in circumstances where either the interests of land management or conservation interests were best served by such an exclusion. It is not automatically the case. But, quite clearly, many of the situations to which other noble Lords referred would be very relevant in terms of conservation. I repeat: it is not automatic.

Photo of The Duke of Montrose The Duke of Montrose Conservative

My Lords, I was extremely interested to hear what the noble Baroness said in her response. I was similarly interested in the various aspects of conservation that were mentioned by other noble Lords. However, I am left with this question. If the farmer sees deterioration taking place, will it be his responsibility to approach the body concerned? I am not quite sure which body he would have to approach--for example, whether it would be the Countryside Agency, or whoever--in order to get an exclusion order implemented. It may well become the responsibility of the farmer, but the point here is to stop the access before the deterioration goes too far. Nevertheless, in view of the assurances given by the noble Baroness, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

moved Amendment No. 17:

Page 64, line 15, at end insert--

("13. Land which is habitually used for the training of racehorses is not to be treated by virtue of paragraph 9A as excepted land except--

(a) between dawn and midday on any day, and

(b) at any other time when it is in use for that purpose.").

On Question, amendment agreed to.

Clause 2 [Rights of public in relation to access land]:

Photo of The Earl of Caithness The Earl of Caithness Conservative 6:00 pm, 1st November 2000

moved Amendment No. 18:

Page 2, line 28, at end insert (", and

(c) he observes the byelaws which the access authority shall prescribe").

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, this matter was discussed in Committee but perhaps not in the detail that it should have been. At that stage we went off on a slight tangent as I believe that the Government misunderstood the purpose of the amendment.

I fully accept that the breaking of a by-law is a criminal offence. However, by-laws must be in place. That is the whole nub of my amendment which is pivotal on the word "shall". The Minister has already said this afternoon that the Government require flexibility. However, by-laws must be in place to make the Bill workable. If that flexibility is not backed up by by-laws, I fear that the Bill will be unworkable as the provisions in each area will be different.

Unless by-laws are in place and criminal proceedings can be invoked when they are transgressed, the Bill will become unworkable. That is what we all dread; it is not the purpose of the exercise. The amendment clarifies the situation and allows the Government the flexibility they seek but asks the appropriate bodies to put by-laws in place to back up that flexibility. I beg to move.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I am sorry that in Committee the noble Earl did not obtain the response he wanted. He makes an unusual request in asking for by-laws to be established in every area. The value of by-laws lies in their ability to respond to particular local circumstances. It is unusual to seek to impose a network of by-laws. People may consider that by-laws are not needed in certain areas. Where by-laws are put in place by the access authority under Clause 17, it will be a criminal offence to breach them, as the noble Earl recognises. A fine of up to £500 may be imposed.

The effect of Clause 2(1) and paragraph 1(d) of Schedule 2 is that any person who commits a criminal offence is not entitled to exercise the statutory right of access. Those exercising the right of access must comply with any by-law in order to retain that right. It is not logical for us to seek to impose by-laws unilaterally and uniformly, whatever the local circumstances. I hope that the noble Earl will not press the amendment.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, the whole point of by-laws is that they are not uniform. They cannot be imposed uniformly across the country. The Government appear to have given access authorities flexibility in these matters. However, unless that is backed up by by-laws, the Bill will be unworkable in many areas. If access authorities do not establish by-laws, the Bill will be unintelligible, unworkable and will lead to division in the countryside. The Government are making a rod for their own back on this issue. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

moved Amendment No. 19:

Page 2, line 30, at end insert--

("( ) Save as hereinafter provided, a person is not entitled to enter on access land during the night or to remain on access land during the night unless prevented from leaving it by unforeseen circumstances.

( ) If, after proper consultation, it appears to the appropriate countryside body that certain access land is suitable for access at night, it may determine that such land is open for access at night, and any such determination may impose such limitations or conditions as to access at night as appear to it to be appropriate.").

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, in moving Amendment No. 19, I wish to speak also to Amendment No. 28, both of which stand in my name. The noble Baroness, Lady Byford, has kindly added her name to Amendment No. 19. The amendments deal with the vexed question of night access. I hope that they provide a compromise solution which will resolve this knotty problem.

Amendment No. 28 provides a definition of "night" which would be helpful to those seeking night access. The amendment states:

"'night' means the period from one hour after sunset to one hour before sunrise on the following day".

The amendment would allow people to view sunset and sunrise.

Amendment No. 19 forbids people to enter access land at night; it requires them to leave it before night falls. However, it makes express provision for those who are delayed in leaving the land by unforeseen circumstances. They do not commit the offence of trespass if, for example, they become lost, fog descends or they are hurt. That deals with the concern expressed in Committee by the noble Lord, Lord Dubs, and others that if fog descended or conditions deteriorated people might expose themselves to danger trying to leave the land come what may when it would be much more sensible for them to "hunker down" and wait for the fog to clear.

Photo of Lord Dubs Lord Dubs Chair of Labour Peers

My Lords, I thank the noble Viscount for giving way. Would his amendment alter the position in those areas where there is existing access at night, for example in the Lake District? Would the amendment take away that right?

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, I take nothing away. I do not think that the Bill takes anything away; it merely states that under its terms access will be subject to certain provisos. It does not say anything about existing rights of access. To put at rest another concern that has been expressed, it does not in any way take away the power of a landowner to allow access, as many frequently do, particularly where the access has been sought by an organised body.

Under the terms of the amendment, with the exception of the person who is delayed by unforeseen circumstances, normally--I stress the word "normally"--there will be no right of access to the land between one hour after sunset and one hour before sunrise on the following day. That approach stems from the view expressed by many in Committee that there is generally no need for access to roam at night as opposed to access to footpaths at night. If and in so far as there is a desire to roam at night on the part of a limited number of people, the value of that desire is greatly outweighed by the manifest problems which night access can engender. Many mentioned those problems in Committee and may, no doubt, repeat them. They include disturbance to wildlife and stock--the noble Viscount, Lord Brookeborough, mentioned that--fear engendered in those who occupy the land by people roaming around; the opportunities it creates for crime; the difficulty posed for those responsible for the land in knowing whether a person on the land at night is genuinely and honestly exercising his access right or has a more evil intent; and the interruption to legitimate night activities such as lamping for foxes. That is the basic premise of the amendment. However, it recognises that there may be land where those problems do not apply to which night access can be allowed safely and properly. It provides that after due consultation the appropriate countryside body can decide to allow night access to specific land. It can do so absolutely, or subject to certain restrictions or conditions--for example, restriction to a particular time of the year.

Thus for night access the presumption of the remainder of the Bill would be altered. Instead of access being allowed with the authority having power to exclude it in certain circumstances, the amendment provides that night access would normally not be allowed but the authority would have power to allow it where it believed that danger or problems would not arise. This in no way infringes on the fact that owners can give permission. They often do so when night access is by an organised body.

I hope that the amendment is a genuine, reasonable compromise which reconciles this difficult conflict. Unless that conflict is resolved by a provision such as this, it will be a major cause of friction, trouble and unhappiness and do much to damage the otherwise admirable principles of the Bill. I beg to move.

Photo of Baroness Byford Baroness Byford Conservative 6:15 pm, 1st November 2000

My Lords, I have put my name to the amendment. We spent many a long hour in Committee debating the reasons that night-time access should not be allowed. The noble Viscount refers again to the issue. I shall not delay the House by going through those reasons in detail. The noble Viscount, Lord Brookeborough, was not with us in Committee. He highlighted some of the difficulties of allowing night-time access.

We are referring to access land. Access to rights of way at night time will still exist. If night-time access is allowed, people who live in remote areas will not know which individuals they can challenge. If night-time access is with the agreement of the landowner, their fear is reduced. If permission has not been given, there is a good chance that people who are present at night should not be there. Foggy conditions and so on would have to be taken into account. In those circumstances, those in rural areas would feel greater security.

I refer also to the safety and security of people out at night. Much of the land that they will visit is unsafe at night. Mapping will identify areas of bog but the situation at night is difficult. I am sure that noble Lords will have helped people who have got into difficulty at night. There is the very real problem of the safety and security of those people.

We are talking about the principle of night-time access. We have to balance the safety and security of the people living in these areas--they know whether people should or should not be present at night--with the desire of those who wish to wander. In Committee, noble Lords understood that balance but pointed out that if individuals have a right to go out at night they know that they may get into difficulty and require help. That right has to be balanced against the realistic problems of those who live in the area. Crime in rural areas is still a great and increasing problem. Unfortunately the quick emergency response for those living nearer towns is not available.

We debated the issue at great length in Committee. I hope that the Minister has been able to consider the arguments put forward. Noble Lords have argued that the individual night-time walker or rambler knows the risks that he runs. But is the right to take that risk greater than the right to safety and security for those who live and work in the area? That is the difficulty the House has to decide.

The noble Viscount referred to land management and the control of foxes. They are often lamped at night. It would be most unfortunate if people became involved in such a situation unwittingly.

I shall not go into other issues raised in Committee; other noble Lords may wish to do so. I recognise that night-time access will give pleasure to some people who wish to wander off rights of way. The amendment does not affect the individual's ability to enjoy night-time access on rights of way. I hope that the House will achieve a balance between the safety and security of people and the conservation of wildlife. I am happy to support the amendment.

Photo of Baroness Nicol Baroness Nicol Labour

My Lords, before the noble Baroness sits down, perhaps I may draw noble Lords' attention to the Companion--we have all received recently a beautiful new copy--which states that,

"Arguments fully deployed in Committee of the Whole House should not be repeated at length on report".

The patience of the House may well be tried if every noble Lord who speaks goes over the same arguments again. So far I have not heard a single new argument.

Photo of Lord Hardy of Wath Lord Hardy of Wath Labour

My Lords, I hope that my noble friend will think that I offer a new point. I was unable to take part in the debate in Committee. I am interested in the issue. It is inevitable; for a long time I represented a county constituency with 246 farms within it. There is anxiety. I hope that we shall achieve a balance.

One slight inconsistency puzzles me. Perhaps the Minister will explain it. On the one hand we are keen to see the protection of ground-nesting birds by banning dogs from March to August. I do not complain about that. On the other hand, we are prepared to see humans going way off the footpaths, probably disturbing ground-nesting birds. From my observations of the species, the bird that is disturbed during the day is likely to return to the nest more quickly than the bird disturbed at night. I should be grateful if my noble friend will explain the inconsistency.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, I refer to an issue which I do not believe has been mentioned--the danger of arson. When the hay has been cut in the summer, it is common practice to take it by tractor or trailer, when the ground is hard, to the hill to store. I have a small, remote Dutch barn full of hay that has been torched three times over the years. It has been burnt down, rebuilt with the insurance money, burnt down again and rebuilt again with money that was rather more reluctantly provided by the insurance company. There is always a danger of arson with remote farm buildings. If there is no Lebensraum or protective area around farm buildings--I think that I heard the Minister say on the previous amendment that that will apply only to residential buildings--there will be a danger of buildings being torched.

Photo of Lord Waddington Lord Waddington Conservative

My Lords, I shall not detain the House for long. I was not here during Committee stage and I realise that the House would lose its patience with me if I was other than very brief. However, I should like to contribute to the debate because so many people have shared with me their concerns about night-time access.

There is enormous concern in the countryside about crime. It will be unfortunate if we finish up with a Bill that does not fully take into consideration the concerns of people who live in the countryside. It has been regularly pointed out that we need to strike a balance so that the end product is largely acceptable to country dwellers.

If it is thought that night-time access will have comparatively little effect, because not many people will exercise the right to roam about at night, I wonder why we are going to all this trouble and causing so much concern in the countryside about it. If, on the other hand, the Bill's effects are going to be potent, we have to consider the wellbeing of people living in isolated homes in the countryside near access land. What about their peace of mind when they see lights at night in the open countryside close to their home, or when they hear people not far from their home? The police will not come, because they will feel that it would be a waste of time. Some have argued that burglars might be deterred from going on access land by the prospect of coming into contact with people who are exercising their right of access, but if the householders go out to see what is going on, ramblers and burglars alike will give the same response--that they are simply exercising their right of access.

Some say that it would be difficult to enforce a ban on access at night, but at least the householder would be able to take some action if he saw or heard someone lurking around by his home. He would be able to go out and challenge that person and tell them to clear off. He could also call the police.

Of course we must have proper regard to genuine country lovers. There are plenty of those who would no doubt wish to see the sunrise or the sunset. They are catered for by the amendment. There is no reason for access not to be granted during the hour after sunset and the hour before dawn. I cannot for the life of me understand why those who want to see the night sky cannot do so from the very extensive network of footpaths that runs through almost the entire country.

I am not exaggerating the concerns of people who live in the countryside. I hope that the Government will bear in mind their fears that they will not be able to take proper action or get the police to do so if they are worried by the sight or sound of people moving around near to their home.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, before other noble Lords speak, I remind the House of the words from the Companion, quoted by my noble friend Lady Nicol. I think that those on both sides who were unable to be present in Committee have allowed me to be even-handed in saying that a little element of repetition of earlier arguments is now occurring.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, surely the point made in the Companion relates to a topic that has already been debated. We are considering an entirely new proposition. We have never debated a system of discretion under which night access was forbidden in some places and allowed in others. It would be highly undesirable to try to shut out debate on the issue.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I am not seeking to shut out debate. I assure the noble Viscount that the issue of perceived problems with night access was thoroughly debated in Committee.

Photo of Lord Dubs Lord Dubs Chair of Labour Peers

My Lords, the last thing that I want to do is run foul of my Whip, so I shall be very brief. None of the speeches in support of the amendment, or similar amendments in Committee, has answered one simple question: in those parts of the country where night access is permitted, such as the Lake District, are the problems that they have mentioned manifest? I submit that they are not. Until those who support the amendment have demonstrated that night access does not work or that it causes the enormous harm that they claim, their case falls.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, am I not correct in believing that in areas such as the Lake District, where there is night access, there is an efficient warden system?

Photo of Lord Dubs Lord Dubs Chair of Labour Peers

My Lords, there is an efficient warden system, but I have seldom seen the wardens about, and certainly not as it gets dark. If night wardens were the answer, the Government could have suggested that solution.

The noble Viscount, Lord Bledisloe, talked about friction, trouble and unhappiness. I submit that there is no clear evidence that any of those problems will be caused.

To answer the point made by the noble Lord, Lord Waddington, my experience is that nearly all the isolated farmhouses in the areas to which the amendment might apply have guard dogs, which draw attention to any walker or other person in the vicinity long before any farmer or resident notices.

Of course the issue is not clear cut and it might be necessary to restrict access in some circumstances, but the amendment is the wrong way round. The normal presumption should be that night access should be permitted, except in certain areas where there are good local arguments against it.

Photo of Lord Greaves Lord Greaves Liberal Democrat 6:30 pm, 1st November 2000

My Lords, I recognise that the noble Viscount, Lord Bledisloe, has produced a new proposition and in so far as it is different from what we have considered before, it is worth debating. For the reasons that the noble Lord, Lord Dubs, has just given, the noble Viscount has it the wrong way round and the Bill has it the right way round. The normal principle in this country is that if people have liberties, they apply in all cases except when it is thought necessary to remove them in the interests of the general public or of individuals. The noble Viscount seems to propose that the liberty to walk on access land at night should not exist except in certain circumstances when it is thought desirable. That is the wrong way round. The Bill provides an opportunity to deal with problems when they arise.

The noble Viscount said that there was no need to roam at night. Of course, there is no need for any of us ever to go on mountains, moorland or wherever else we go. The noble Lord, Lord Northbourne, may tell us that there is a need because it is necessary for us all to keep fit. However, I believe that that is the only evidence of need to have been produced in these debates. We are discussing whether people should have a new right--some might say an historic right restored--to walk on land which will be declared as access land. For the reasons which we debated at great length in Committee, that right should exist.

At the risk of upsetting the noble Baroness, Lady Nicol, and the Whip, I want to revisit one or two matters that we discussed in Committee. I have considered carefully whether some of the things that were said in Committee should cause me to change my mind. I have looked at the matter in two ways.

First, I have considered whether we should return to the arguments that were advanced against those that I and other noble Lords put forward. The fundamental argument which we used and which has been put forward again by the noble Lord, Lord Dubs, is that the people who propose change are those, including noble Lords here, who argue for night-time restrictions. In Committee we argued that wherever access is allowed, whether by rights of access in countries such as Norway, Sweden and Germany on what we would consider to be moorland mountain and not the flatlands of Denmark, or in this country, whether in the Lake District under other legislation or whether by what I believe the noble Lord, Lord Marlesford, described as "access by silent consent"--a very good phrase--then no distinction is made between day and night. We advanced that argument and listened carefully for reasons why that basic principle should be changed. However, I have not heard anything which convinces me to change my mind.

I listened carefully in Committee to the arguments put forward by the noble Earl, Lord Peel. He explained why, for example, it was bad to allow people on to moorland at night. His reasons related to crime and poaching and the fact that people would get up to no good. If I have understood the arguments correctly, I believe that the first has been dismissed as being fatuous; that is, that removing the fact of trespass will encourage people to go on to land and that a right of access will encourage criminals to go on to land. That is nonsense.

Secondly, the idea that criminals--

Photo of Baroness Strange Baroness Strange Crossbench

My Lords, before the noble Lord sits down, I have heard all his arguments before. Do we have to hear them again?

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I understand the noble Baroness's point. I shall now be as brief as I can. I believe that we must explain why we do not accept the arguments that have been put forward. That seems to me to be our duty.

The second argument put forward by noble Lords--I refer in particular to a speech made by the noble Earl--was that such a proposal would make it impossible to challenge people who went on to land. That view has been advanced again this afternoon. I do not believe that that is right. One may believe that a person is up to no good in any place--it does not have to be on access land. If one sees a person outside one's house and believes that he will break in or burgle the house, the fact that he is in the street--a highway--does not mean that he cannot be challenged. Therefore, the argument that people cannot be challenged does not wash.

The third argument put forward by the noble Earl and by other noble Lords was that one may be in a farmhouse or a cottage and see lights on a hill. If no access is allowed, one can assume that the people on the hill are up to no good or, at least, trespassing. If access is allowed, it will be difficult to come to that conclusion. I have thought hard about that scenario. Such a situation appears to present a much more serious argument, although I do not believe it to be an overriding one.

If one sees people on a hill, whether it is during the daytime when they can be seen individually or whether at night when it may be possible to see only their lights, in most cases the pattern of their movement will help to inform what they are doing. If two or three ramblers are walking across a hill or people are climbing on a local crag, the pattern of their movement will be quite different from that of people rounding up sheep when they should not be doing so. I believe that common sense suggests that in most cases a person who sees people on a hill in those circumstances will have a good idea as to whether they are--

Photo of Baroness Strange Baroness Strange Crossbench

My Lords, I beg to move that the noble Lord be no longer heard.

On Question, Whether the noble Lord be no longer heard.

Photo of Lord Ampthill Lord Ampthill Crossbench

My Lords, as many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it.

On Question, Motion negatived.

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I shall now be very brief. The noble Baroness intervened when I had virtually finished. My final point is simply that, of all the amendments to have been tabled, I believe that this one attempts to wreck the Bill, to wreck everything that it stands for and to wreck the principles behind it. I hope that the House will reject it.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, before the noble Lord sits down, I object to his last comment and ask him to withdraw it. There is no question of our trying to wreck the Bill. In fact, if we were more constructive, we should get through the Bill more quickly. I ask the noble Lord to withdraw.

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I shall repeat rather more carefully what I said previously. It is my view that, if this amendment were passed, it would wreck the principles and practice behind Part I of the Bill.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, the rules of this House matter considerably and I shall certainly stick to them. I simply want to say that I have had the same experience as the noble Lord, Lord Northbourne. I believe that people are more frightened by this part of the Bill than by any other. It concerns potential arson and I believe that the Government should pay attention to that.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

My Lords, I rise to support this amendment because of its flexibility. First, the noble Lord, Lord Dubs, mentioned that there did not appear to be many complaints as a result of night-time rambling in the Lake District. I do not believe that we are comparing like with like. The Lake District is a largely uninhabited area in the uplands. People who go there go properly equipped and are used to walking in such areas. In this Bill we are discussing land which is much closer to populated areas. Such land would be more accessible to the casual walker who may interfere with what goes on in the countryside.

My second point is that earlier, when I ventured into the night-time argument, the Minister suggested that no single buildings housing animals existed without habitation being close by. That is simply not true. In marginal farming areas many people live away from their farm buildings with their animals. We are not necessarily discussing a farmyard scenario. The fact that such farmers may keep dogs to guard them makes it even more dangerous for people to go there at night. I suggest that problems would arise in relation to people being bitten.

Thirdly, because such farms are isolated, people often surround them with electric fences so that, if animals break out of the buildings in which they are kept, they will not venture further. Some electric fences are now powerful and supplied by the mains. They cannot be shorted so easily when farmers are not able to inspect them at every minute of the day. It can be quite frightening to come up against such a fence. I have done so at night and have floundered around a field, getting electrocuted in every corner. It is not a funny experience. I suggest that there is no reason to allow that type of situation to occur.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, I wish to make two points very briefly. First, as one who is not immune to impatience, perhaps I may say that I have learnt--and the bite marks where I have bitten my lip bear me witness--that the times when we find it most hard to listen are those when it is most important that we should do so.

Secondly, I wish to put a question to the movers of this amendment which is asked in a spirit of genuine curiosity. How would the amendment impact on people in the position in which I was placed; that is, I was walking on the hills late in the afternoon when I sprained my ankle and was unable to make my way down before dark?

Photo of Lord Willoughby de Broke Lord Willoughby de Broke Conservative

My Lords, I intervene on behalf of the noble Viscount, Lord Bledisloe. His amendment specifically addresses the question of someone who is inadvertently unable to come down from the hill or the access area at the right time.

Photo of Earl Peel Earl Peel Conservative

My Lords, I should like to address briefly the points made by the noble Lord, Lord Dubs. He raised some interesting issues. We must remember that at the moment night-time access is precluded unless on footpaths. Any night-time access that has occurred in the Lake District has occurred through negotiations between those who wish to exercise that night-time access and the owners of the land. There is a world of difference between negotiated access and access that is to be provided through this legislation.

Photo of Lord Dubs Lord Dubs Chair of Labour Peers

I do not wish to prolong this debate, but I am certainly unaware that there is any need to negotiate night-time access. I have never heard of that.

Photo of Earl Peel Earl Peel Conservative

My Lords, there may be de facto access. The situation still arises that that is done with the tacit permission of the owner or the occupier. This is an exceptionally important point.

The reason I support the amendment of the noble Viscount, Lord Bledisloe, is because it deals with all the points raised in Committee. It introduces flexibility and consultation. It allows the access authority to decide whether or not the land is appropriate for access. As such, it overcomes many of the difficulties and problems raised in Committee.

I am not going to answer the noble Lord, Lord Greaves, who seemed to go through my speech in Committee rather carefully. I should like to make one point; that is, we must not lose sight of those people who manage the land we enjoy--the farmers, shepherds and gamekeepers. They work all hours to produce a landscape that everyone in this country appreciates. Are they now to be expected to be responsible for access at night as well as during the day? We are putting a tremendous onus upon them, and it is highly irresponsible to do so.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, it is clear from this amendment that it is more thoughtful than the amendments we discussed in Committee. As the noble Baroness, Lady Byford, said, it is an amendment about the principle of night access. Although it addresses some of the issues that caused concern in Committee, it is a matter of principle.

Noble Lords have clearly made the point that there is another option that would address the issues of wildlife and crime; namely, to close those areas of land where there are continual problems or there is a danger of unreasonable disturbance to wildlife.

Since Committee stage I have had many communications from a number of people, as has the noble Lord, Lord Waddington, but in a different vein. My communications were from people who shared with me their anger at being regarded as potential criminals. This debate divides us into two categories. There are those who fear the dark, quite understandably. Bad things happen at night. Overwhelmingly, there are also those who take pleasure in activities that can happen in the dark on open access land.

My point is that we should not confuse crime and the fear of crime, which is very real and which many people experience, with the fact that, if people do legitimate things they enjoy at night, it does not make them more likely to be criminals and it does not address the difficulty of the real criminals.

The bottom line with this principle is that it is basically unenforceable. I do not believe that the police will back a ban on night-time access. In the last resort it is the police who must enforce the law. If it proves to be unenforceable it will detract from their ability to deal with the very real crime in rural hamlets, villages and market towns, something they are finding difficult to do at the moment.

We believe that these amendments that seek to prohibit night-time access will not work. We will not support them.

Photo of Lord Judd Lord Judd Labour 6:45 pm, 1st November 2000

My Lords, would the noble Baroness, Lady Miller, acknowledge that the Association of Chief Police Officers has gone on record as saying that a general curfew would be unenforceable and would not enjoy public support? It would be putting an immense responsibility on the police that they believe they cannot discharge.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, I believe it was the noble Baroness, Lady Nicol, who raised that point in Committee and put it on record.

Photo of Baroness Gale Baroness Gale Labour

My Lords, I speak against Amendments Nos. 19 and 28. Much has been said about access at night. The ban on access at night--if these amendments were carried--would reduce the access currently available and being used by many individuals and organisations. Bodies that allow access at night have not experienced any significant problems. The Bill already provides for closures and restrictions to be made on a local basis or for by-laws to be introduced where there is shown to be a problem with access at night.

Many people gain great pleasure from walking whether it be at night time or day time. If they wish to walk at night, why should that be denied? How would this ban be enforced? I believe that a ban on night access would be unenforceable.

Most people who enjoy walking are responsible people. They care about the countryside. So why would they not use the same responsibility at night? The risks of walking at night, falling down crevices and numerous other risks, were spoken about earlier. Those who walk are generally responsible. They take those risks into account and do not walk in dangerous areas.

There are already laws to deal with those who intend to carry out illegal activities at night,.

As the Bill stands, it provides for night access and safeguards should any problems arise. Where there are safeguards people should be allowed access--day or night--to enjoy fully the pleasures of walking. It would take away the spirit of this Bill if these amendments were carried.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, we have had a long debate on this issue as we did in Committee. The noble Viscount claimed that this was a reasonable compromise. I do not believe that it is a reasonable compromise. It effectively provides a blanket presumption that there will be no access at night. As the noble Lord, Lord Greaves, said, that severely restricts the right to access.

We have considered many of the issues raised in Committee, some of which were repeated here.

The arguments have hardly been put on behalf of those who would enjoy this access, for those engaged in hill walking and climbing for which night access is an integral part of their whole occupation and it goes right through to those who wish simply to observe the sunrise or sunset. In that context, it would take me longer than an hour to reach the top of a hill or mountain in order to observe sunrise or sunset. Therefore, we need some considerable additional periods even for that.

Beyond that, education and training establishments attach great importance to training at night time. The British Mountaineering Council advises that it is essential for leaders and individual members to have night time experience. Much of the training undertaken by the Mountain Rescue Service, referred to in Committee, is conducted at night. It is strongly in favour of not having a restriction at night.

English Nature has advised that there is no general concern over access during the hours of darkness. Many groups of naturalists require access at night in order to observe nocturnal animals and insects. Those people have special interests but they are exactly the kind of special interests to which the right of access should apply. They may not amount to very many people in total but they are important groups of people and the very fact that they may not amount to many people means that many of the fears and anxieties reflected in the debate are invalid. We are not talking about hordes of people crossing the countryside at night. We are talking about people enjoying the right of access for very specific purposes.

Very few will want to walk beyond the paths and tracks but there are some people who do. We have experience of these matters, and several noble Lords have referred to it. There are vast areas of the countryside where access by night exists at present--on Forestry Commission land, National Trust land and the Lake District to which my noble friend Lord Dubs referred. There is a wide variety of different types of land with different levels of population density and so on.

In all those areas, there has been no serious problem. Indeed, as my noble friend Lord Dubs said, in the Lake District, there are 1,000 square kilometres of open land where there are already statutory access rights 24 hours, day and night. We have not heard one single example of how that existing access has given rise to the kind of problems which have been raised today.

Photo of Lord Cavendish of Furness Lord Cavendish of Furness Conservative

My Lords, I live in the Lake District and last night, my quad bike was stolen from outside my front door.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, under the amendment that we have just passed, nobody could get close to the noble Lord's front door to steal his bike. Access would not apply within 20 metres of his front door.

In those parts of the country, for 75 years or longer, there have been substantial rights of access. In areas such as the Peak District, there has been access at night well beyond the rights of way. I do not believe that the noble Earl, Lord Peel, is correct in his references to the Lake District. Access rights in the Lake District do not have to be negotiable and they are not restricted to rights of way. That situation has existed in the Peak District for 50 years and no necessity has been seen for night wardening.

Photo of Earl Peel Earl Peel Conservative

My Lords, I was not suggesting that for one moment. I was saying that where access has been negotiated on open land away from footpaths, that has been done through the local access authority or through groups of people in conjunction with the owner or occupier so everybody knows what is going on. There is a world of difference between the two.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions

My Lords, I do not believe that that represents the position in the Lake District although there is a great deal of co-operation and understanding there. That underlines the point that if effective access management exists, there are relatively few problems.

The noble Earl referred to Denmark. I shall refer to Germany, Sweden and Norway where access by night is not restricted.

As was said earlier, those who are likely to take advantage of the rights of access somewhat resent being regarded as potential criminals. The experience of over half a century does not give any credence to the arguments which have been put forward here today.

The noble Lord, Lord Waddington, referred to rural crime. Crime in countryside areas is largely committed against people who live in villages or small towns where the right of access, the right of way--a pavement or a road or a lane--comes close to the property. That is where the bulk of rural crime takes place. In any event, the figures for rural crime are diminishing, rather than as has been alleged in the House this afternoon.

Those who carry out crime do not need the cover of access rights. Almost by definition, a burglar is a person who does not observe access rights in any event. Arsonists are in the same category. Noble Lords have told the House of incidents of arson which are regrettable, as was the case of the theft of the noble Lord's mountain bike, about which I should have commiserated with him. But those arsonists do not require the cover of access rights in order to carry out their crimes. And they are crimes and they will continue to be so. Rustlers and poachers have, from time immemorial, carried out their crimes in the countryside without any rights of access.

The idea that suddenly giving a right of access means that those crimes will increase seems to me misplaced. Indeed, although I do not make a great point of it, I should say to the noble Lord, Lord Waddington, that, if anything, the fact that more people are around at night may limit that rather than having the opposite effect.

In any event, as I said, we have passed an amendment to provide a 20-metre exclusion zone around dwellings which should give greater security to those who fear the effects of the extension of these rights at night time.

As has been said, it is the case that the police do not regard the exclusion of a right to access during the night to be a sensible move.

The noble Baroness, Lady Byford, referred to the safety of walkers. I accept that in open and sometimes remote countryside there are dangers, serious dangers. But walkers take those risks, whether by day or night, and they must bear the primary responsibility for their own safety. If somebody does something which is foolhardy, then he must accept the consequences of his actions. That has always been the position under the law and it will continue to be the position after this Bill has passed.

I contend that the case for a blanket national ban on access at night has simply not been made. It would seriously curtail the totality of the right of access. In Committee, the noble Lord, Lord Greaves, referred to 50 per cent. It is slightly less than that but it is a substantial part of the day. That cannot be justified on past experience, on evidence or on an assessment of the kind of people who would make use of that right or on the basis of fear of rural crime.

The noble Baroness was right to say that there must be a balance here but we have already struck that balance in this Bill. This amendment puts the balance the wrong way round. The presumption of the amendment is that night access should be banned, except in those areas where particular circumstances apply. The Bill as it stands would provide for night access, except in those areas where special circumstances arise and that can be dealt with either by exclusion or by by-laws. That seems to me to be sensible. That can deal with areas which are particularly vulnerable or have been subject to serious crime or particularly vulnerable to particular types of crime. The Bill provides that flexibility and that is the right way round in this Bill. To turn it on its head and put it the other way round begins to undermine the purpose of the Bill and I do not believe that we can pass the Bill with such a serious restriction on the right which we hope to be giving to the people of this country.

The flexibility in the Bill makes it possible to deal with real problems. The noble Viscount and many of those who have supported him have been dealing with phantom problems. Let us deal with the real problems and provide the flexibility to meet them. But let us not pretend that the access for people who will enjoy night-time access will cause the kind of problems which have been alluded to by many noble Lords today. I hope that the House will reject the amendment if it is pursued.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, perhaps I may deal with one or two of the points which have been raised. I start by assuring the noble Lord, Lord Greaves, that this amendment is by no means an attempt to wreck this Bill; it is an attempt to find a genuine compromise. I assure the noble Lord that I am a sufficiently experienced draftsman that if I wanted to wreck the Bill, I should find a very much better way of doing it than this.

The substantive point that has been made against the amendment is the point made by the noble Lord, Lord Dubs, that there are areas where night access is presently enjoyed and where these problems do not seem to manifest themselves. But it is because the owners of that land did not see that night access was likely to cause them problems in their circumstances that they have allowed night access. It is to land similar to that that the second part of the amendment is intended to apply.

In Committee the noble Lord, Lord Greaves, spoke about walking up Snowdon at night. I fully accept that the Minister could not manage that in an hour. I could not manage it in a great deal longer. It is just such areas, where experience shows that there will not be problems, that are intended to be covered by the second part of the amendment. Where the countryside body sees that there will not be problems because there is no game or wildlife, livestock or remote dwellings, it will allow night access.

There are other areas where there will be birds breeding, livestock, valuable property and remote houses and where problems will not occur. We cannot say that they have not occurred because where night access presently happens, that is allowed by the owner because he does not fear any problems.

The noble Lord, Lord Greaves, advanced the remarkable proposition that the amendment seeks to detract from a liberty. At present, there is no liberty to have access to such land. The Bill confers a new right and it is a purely neutral question of how large that right should be. If I were seeking to deny night access to land where that had existed for many centuries, the noble Lord would have a point.

This must be the first time that the noble Earl, Lord Russell, has ever been caught out by not having read an amendment before the House. The wording expressly states that the individual does not have to leave the land unless he is presented with unforeseen circumstances. The noble Earl's strained ankle would certainly be an unforeseen and unhappy circumstance.

The noble Baroness, Lady Miller, suggested that one is trying to say that the people exercising the right are potential criminals. The amendment's supporters are claiming nothing of the kind. We are stating that potential criminals exist. At the moment, as soon as they are on one's land, one can challenge them and tell them to go away. When the Bill is enacted, one will not be able to challenge such persons until they have done something towards committing a burglary. The Bill gives such persons a disguise, to enable them to get to the point of committing their crime before being under suspicion. One will not know whether someone is a perfectly legitimate walker or a potential criminal. One cannot even challenge them and tell them to go away.

The noble Lord, Lord Judd, said that the police cannot enforce such a provision. Of course they cannot stop any person going on to land at any time. The existing law of trespass cannot be fully enforced. People trespass even though that is not allowed--but as soon as they do, at least one can seek to turn them off. If they trespass persistently, one can ask the police to help. There will be wardens to help. To say that we should allow anything that the police cannot completely prevent is an argument for legalising a large number of activities--such as smoking cannabis and speeding. One does not dispense with rules because people will occasionally break them.

The Minister says that my amendment has things the wrong way up, but it does not. Under his system, any owner who fears problems will have to make an application and prove the case--a considerable burden on the owners of small pieces of land or small farms. Under my amendment, the Ramblers' Association or a similar organisation can apply to the Countryside Agency in respect of a whole area suitable for designating for night access. Surely it is more reasonable that the burden should be on them. The problem will not go away and I shall seek the opinion of the House.

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 116; Not-Contents, 155.

Division number 2

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 7:15 pm, 1st November 2000

moved Amendment No. 20:

Page 2, line 30, at end insert--

("(2A) An authorised person who believes that any person on access land is or has become a trespasser, or has committed any offence, on that land may require that person to give to him full particulars of his identity.

(2B) Any person failing, without reasonable excuse, to comply with the requirement in subsection (2A) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.").

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, this is a less contentious amendment. In moving it, I shall speak also to Amendment No. 29 which, once again, is purely a definition provision. It defines, for the purposes of Amendment No. 20, what is an authorised person.

Amendment No. 20 seeks to deal with what can be done with someone who appears to be breaking the rules on access land. This Bill is full of good intentions and rules governing the behaviour of those who exercise their access rights, but there are virtually no teeth for dealing with them. The amendment is a modest attempt to improve the situation. If an authorised person believes that someone on access land has broken a rule or committed an offence he can demand from that person particulars of his identity and it will be an offence for that person to fail to give such particulars unless he has a reasonable excuse.

Surely it must be right that a warden or an owner or his representative can discover who owns a misbehaving dog or who has damaged his wall. I recognise that the amendment still leaves the problem of what the authorised person can do if an offender refuses to answer. The noble Lord, Lord McIntosh, and I had a discussion in Committee about someone who, when asked to do something, replies with expletives that would be deleted if repeated in the House. That problem will always be there, but this amendment would provide an offence if someone failed to give such particulars.

In Committee I suggested that one should be able to find out who was on access land. That was said to be an infringement of liberties. However, the noble Lord, Lord Whitty, accepted that there might be arguments in relation to someone who had committed an offence or broken the rules.

I hope that the Government recognise that those who need to enforce the rules will need help and that they should therefore accept the amendment. There is no point in having schedules in the Bill full of things that one should not do if nothing can be done effectively about someone who breaks the rules. If it is not possible to find out who the person is, not even the first steps can be taken to do anything about it. I beg to move.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I support the amendment. Remembering what the noble Baroness said, I shall not cover past ground. However, this is an important amendment. Many noble Lords are concerned that there may be circumstances in which people should be taken to task and there is little enforcement in the Bill. If the amendment is not accepted by the Government, it begs the question: how will sanctions be imposed to obtain a balance between those who are on access land lawfully and those who are not?

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, I support the amendment. It is the crucial amendment of the Bill. If there is no way to enforce the by-laws and the regulations, the Bill is manifestly unfair. I believe that legislation is liable to fail if it is perceived by one party or another to be manifestly unjust. If there is no way of enforcing the rules for the use of access it will be manifestly unjust.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

We on these Benches are unhappy with this amendment. We must be careful when creating new criminal offences. I draw the distinction between a criminal offence, which this amendment seeks to include in the Bill, and the position under the civil law between different parties. The two amendments together, particularly given the criminal nature of subsection (2B) as proposed, would amount to creating a police force or possibly an excuse for vigilantes from which I am sure noble Lords would want to distance themselves. I take some of the points made by the noble Viscount, Lord Bledisloe, about seeking a balance and avoiding confrontation rather than encouraging it. I fear, however, that the amendment might have the contrary effect and we cannot support it.

Photo of Lord Jopling Lord Jopling Conservative

My Lords, before the noble Baroness sits down, will she be kind enough to answer the points made by the noble Viscount, Lord Bledisloe? How would she deal with the situation in which an authorised person had found someone on his land who was a trespasser or who had committed an offence? How can the authorised person do something about that? It is not good enough for the noble Baroness to say, "We don't like it". She must tell the House how she and her party would deal with such a situation.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, I drew a clear distinction between the criminal and civil situation. I believe that this situation is no different from someone living in an urban area finding a trespasser in the garden.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, perhaps I may place on record the fact that at no stage have I criticised the noble Baroness, Lady Byford, who has not repeated herself--unlike one or two other noble Lords!

In Committee, we debated whether wardens, landowners and their agents should be able to request identification from people on access land. The Government's position has not changed in response to this amendment.

We do not believe it is right that such "authorised persons", if they happen to believe that a person is a trespasser or has committed an offence, should be able to require such information to be provided. That would be contrary to the position not only in public places, such as on the street, but also when someone trespasses (or indeed commits an offence) not only in someone's garden, as the noble Baroness, Lady Hamwee, said, but in a noble Lord's home.

If someone has lost the statutory right, they may be treated as a trespasser in the normal way. If someone has committed an offence, he will lose the statutory right but can also be dealt with in the usual way by the authorities. No one, apart from the police in certain circumstances, can require identification from someone in the street, or in his home, even when that person has committed an offence. We do not believe that an exception should now be made for access land.

The noble Viscount, Lord Bledisloe, and the noble Lord, Lord Jopling, referred to situations in which people were being extremely difficult. The noble Viscount referred to a person who responded with a range of expletives. He may agree that if one were to ask such a person for his name his response could be a further expletive.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, I find the Government's response deeply unsatisfactory. In Committee, the noble Lord, Lord Whitty, said that he had considerable sympathy with the position and that where an offence had been committed there was an argument in favour of such a provision. In certain circumstances, one can ask another person for his identity. If you are involved in a car accident, you are required to exchange particulars, even though you may be wholly innocent of fault. If someone is in your house unlawfully, you can physically detain him until the police arrive and find out who he is. It is not good enough merely to say, "You are not meant to let your dog run wild". When I find a dog running wild, I cannot find out to whom it belongs even though it is savaging my land and has caused damage.

The provision is a recipe for physical violence because the only thing the owner is entitled to do is to find a couple of other people, pick the chap up and physically throw him off the land. I do not believe that the Government's desire is that in such circumstances people should come to fisticuffs. Those who do not like the amendment must surely recognise that they must come forward with action that the warden or owner can take if he finds someone misbehaving who will not stop or give his name. Do the Government really expect violence to take place and the person to be forcibly ejected?

The position is deeply unsatisfactory and I hope that the Government will think of something to do about it. I shall return to the matter in some form or another at Third Reading but, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

moved Amendment No. 21:

Page 2, line 35, leave out subsection (4) and insert--

("(4) If a person becomes a trespasser on any access land by failing to comply with--

(a) subsection (1)(a),

(b) the general restrictions in Schedule 2, or

(c) any other restrictions imposed in relation to the land under Chapter II, he may not, within 72 hours after leaving that land, exercise his right under subsection (1) to enter that land again or to enter other land in the same ownership.").

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, we debated in Committee whether wardens or landowners and their agents should be able to request identification--I beg your pardon, I am reading the wrong brief! That has not happened to me for years!

We gave an undertaking in Committee--does that sound better?--to consider the case for extending the period during which the statutory right is lost where someone breaches a restriction. We have considered the matter very carefully. We are aware that breaches of restrictions may well be very minor--for example, feeding a handful of grass to a horse--but we accept that in order properly to protect the interests and the needs of those owning and managing the land, and effectively to discourage people from breaching the restrictions, we should extend the period for which the statutory right is lost.

The amendment will ensure that a user who fails to comply with subsection (1)(a) by damaging a wall, fence and so on, or who breaches a Schedule 2 restriction or any other restriction imposed under Chapter II, will lose the statutory right for 72 hours after leaving the land. We believe that 72 hours is a reasonable time for the right to be lost in such circumstances.

We have always emphasised that those exercising the new right of access should be responsible and this amendment is intended to promote that message.

Perhaps for the convenience of the House I may respond to Amendment No. 21A, which is an amendment to Amendment No. 21. The amendment would mean that someone in breach of a restriction would lose the right of access to all access land, not just land in the same ownership.

As we explained in Committee, we do not believe that someone who breaches a restriction, perhaps to trivial effect, and thereby becomes a trespasser should lose the right of access to all access land. On a practical level, it would simply not be possible to enforce that. There is a good chance that if a person is asked to leave an area of access land because he has breached a restriction, should he return in the next 72 hours he will be identified by the owner, or the owner's agent, and challenged. But if he lost his right of access to all access land, it is unlikely--indeed, impossible--that anyone would even know that he had breached a restriction on other land, and therefore would have no reason to ask him to leave. Even the walker might not know of his breach if the landowner of the land on which the breach took place was not bothered by it and allowed the person to remain on the land.

If a walker who has been in breach moves on to other land in different ownership, he must continue to abide by the restrictions or he will lose his right of access to that land, too. That is a practical requirement which both landowners and walkers will be able to understand.

Opposition Amendment No. 22 is covered by Amendment No. 21. I beg to move.

Photo of Baroness Byford Baroness Byford Conservative 7:30 pm, 1st November 2000

moved, as an amendment to Amendment No. 21, Amendment No. 21A:

Line 9, leave out ("other land in the same ownership") and insert ("any other access land").

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I thank the Government for considering our earlier amendments and tabling Amendment No. 21. I believe that a period of 72 hours makes good sense. The noble Lord has responded to Amendment No. 21A. While I understand the direction from which the noble Lord comes, the problem, which I explained to the Minister recently, is that a person will not know on which land he is walking. Amendment No. 21A means that the walker will clearly know that he is not allowed on any access land for 72 hours, which I believe is at least half a step forward compared with the argument just put forward by the Minister. The noble Lord said that that would not be enforceable because nobody would know on which land he should or should not be. However, I thought that this Bill sought to place responsibility on people who intended to use access land. The walker would know that he was not supposed to be on the land for the next three days. While I have listened to the Minister with great interest, I shall reflect upon the matter, and I hope that the noble Lord will do likewise.

I am aware that my amendment does not provide a total solution to the problem, but at least a person who has committed an offence and is told not to go onto the land for 72 hours--whether or not he ignores it is up to him--knows that he should not be on any access land for that period. We believe that that is a sensible step. I beg to move.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I must inform noble Lords that if Amendment No. 21 is agreed to because of pre-emption I cannot call Amendment No. 22.

Photo of Baroness Young of Old Scone Baroness Young of Old Scone Labour

My Lords, I add my support to Amendment No. 21. I welcome the extension of the exclusion to 72 hours with respect to minor infringements in Schedule 2. The amendment provides a more substantial exclusion which is a serious deterrent and a demonstration, which is otherwise missing, that infringements are regarded with a degree of seriousness. There are other issues about penalties which the 72-hour exclusion does not meet, and I intend to deal with those in Amendments Nos. 23 and 25. However, I thank the Minister for going as far as he has.

Photo of Lord Mancroft Lord Mancroft Conservative

My Lords, I join the noble Baroness, Lady Young, in thanking the Government for tabling this amendment and recognising the issues concerning sanctions that I and my noble friends raised at Committee stage. Undoubtedly, a 72-hour exclusion period is a great improvement on 24 hours because it extends over the long weekend, and we are grateful to the Government for taking that step. It would be helpful if the steps went slightly further, but one can perhaps always say that. However, my noble friend's amendment is a further step in the right direction.

I take on board the Minister's observation that to ban people from all access land for 72 hours may be unenforceable. All such sanctions carry with them the possibility of unenforceability. However, if a 72-hour exclusion from all access land is unenforceable, the reality is that all the sanctions under the Bill, and the rules and regulations attached to them, are also unenforceable. The real problem with this Bill is not the theory behind it but its enforceability (if that is the right word) and how it will work on the ground. Therefore, the greatest concern is that the charge of unenforceability can be levelled at virtually every area of the Bill. Nevertheless, on this occasion I thank the Minister for tabling the amendment.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, we on these Benches also warmly welcome the Government's move in this direction, for which we pressed in Committee.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I beg leave to withdraw Amendment No. 21A.

Amendment No. 21A, as an amendment to Amendment No. 21, by leave, withdrawn.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, in moving Amendment No. 21 I should have spoken also to Amendment No. 27 which is purely consequential. I shall move that amendment when we reach the appropriate point. In addition, the noble Lord, Lord Mancroft, should not think that this is a further step in any direction as far as concerns the Government.

On Question, Amendment No. 21 agreed to.

[Amendment No. 22 not moved.]

Photo of Lord Burlison Lord Burlison Labour

My Lords, I beg to move that consideration on Report be now adjourned. In moving this Motion, I suggest that Report stage begin again not before 8.35 p.m.

Moved accordingly, and, on Question, Motion agreed to.