My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Countryside and Rights of Way Bill, have consented to place their prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
My Lords, I beg to move Amendment No. 1 and to speak also to Amendments Nos. 2, 35 and 37 standing in my name within the grouping. The first two amendments deal with the issue of improved and semi-improved land.
During debates in this House, noble Lords have repeatedly voiced concerns about the impact of the right of access on farmland. On Report, the noble Earl, Lord Peel, referred to improved and semi-improved grassland and acknowledged that,
"it will not be the express intention of the access authorities"--
I believe that he meant the countryside bodies--
"to include such land within access provisions".
He continued that,
"we are trying to define the areas in question in a way that will not lead to confusion".--[Official Report, 1/5/00; col. 958.]
We have gone some way towards meeting that point. We have listened to those concerns and have brought forward Amendments Nos. 1 and 2, which we hope will directly address them.
The amendments will specifically provide, on the face of the Bill, that mountain, moor, heath and down do not include land which appears to the relevant countryside body to consist of improved or semi-improved grassland. The amendments will achieve two things: they will put beyond doubt the point that agricultural land other than unimproved grazing will not be treated as mountain, moor, heath and down; and they will enable such land to be excluded from maps of open country at the draft and provisional stages, so that both landowners and walkers can benefit from reasonable clarity about what is and what is not open countryside.
Perhaps I may also refer to Amendment No. 35, which deals with exclusion zones around buildings. On Report, noble Lords welcomed a government amendment to except from the right of access any land within 20 metres of a dwelling. I proposed that amendment on the basis that widespread concerns had been expressed as regards the privacy and security of individuals living on isolated access land.
However, at that stage, some noble Lords expressed the view that an exclusion area should go wider, to apply to all other buildings. I rejected the view that all buildings on access land should have an exclusion zone of 20 metres. We would certainly oppose introducing zones around dwellings which simply stand unused in the countryside. However, I did take to heart the case made as regards buildings in which livestock is housed. It is clear that there could be risks of disturbance and the protection of livestock is an important qualification as regards the access provisions. Amendment No. 35 will except the right of access from land within 20 metres of buildings used to house livestock.
We have also tabled Amendment No. 37 which deals with circumstances where the position of such buildings would effectively frustrate access. One of my other concerns was that if we did provide for a 20-metre exclusion zone, then in some cases access to certain areas of countryside would be frustrated. For example, there may be cases where the only feasible means of access to an area of open countryside is via a track which happens to run alongside a cattleshed or a dwelling. In such circumstances, we believe that walkers should be able to follow that track without losing their right of access. Of course, it would be open to the farmer to provide an alternative means of access nearby. However, where that is not the case, walkers should be able to use this extended right.
I hope that noble Lords will agree that the amendments create the right balance in this area. I beg to move.
My Lords, we very much welcome these government amendments. We felt that the Bill was rather light as regards how much help it offered to farmers in upland areas, given that it is generally acknowledged that they are experiencing a difficult time. In Committee, several noble Lords tabled amendments to deal with the matter of improved grassland. I am glad that we have finally been able to persuade the Government to take action on this issue.
Our main reservation on the question of night access turned on the matter of buildings used to house animals. We felt that that would make life extremely difficult for those farmers with buildings in upland areas. Again, creating such a cordon sanitaire is an extremely helpful move. We welcome all the amendments.
My Lords, I, too, welcome the amendments tabled by the noble Lord, Lord Whitty. I spoke at some length about the improved grassland that is frequently to be found between a farmstead and the open moorland. I am slightly disappointed that the amendment includes the word "appears"--in the reference:
"appears to the appropriate countryside body to consist of improved or semi-improved grassland".
That seems to leave an element of doubt; whereas all farmers would have no doubt as to what was improved grassland-- bearing in mind that it has probably been re-seeded and carefully fertilised over the years for hay and, of course, in the early bite before it is closed up for hay and for ground-nesting birds, etc. The word "appears" introduces a note of doubt about grassland.
I hope that the Minister will bear in mind--the wording of Amendment No. 37 suggests that he does see this--that most farmsteads are a closely knit collection of buildings, including the farmhouse, byres, hay sheds and so on. It will be very difficult to know whether walkers are within 20 metres of livestock buildings. Some form of clarification will be required. I am glad that by and large the Minister has listened to the remarks that were made on Report and has introduced Amendment No. 2, which is right.
My Lords, perhaps I may speak briefly to my Amendment No. 36 which is included in this group. It is similar to an amendment that I moved on Report but did not press. It is intended to ensure the small degree of flexibility that may be desirable if a rare or endangered species is to be properly protected.
On Report, my noble friend suggested that there was no problem, since those running a nature reserve could contact English Nature and secure the appropriate response, which would be helpful. I then wondered what would happen at weekends. My noble friend Lady Young will be able to tell me whether English Nature is staffed on Saturdays and Sundays, when nature reserves tend to be most frequently visited. If on a Friday evening someone involved in a reserve notices a rare plant just coming into bloom, or observes a ground- nesting bird starting to lay--bearing in mind that ground-nesting birds do not usually spend much time preparing a nest--it may be appropriate for someone in the reserve to have the right to prevent access in the immediate vicinity of that rare plant or rare bird. It would be sensible to provide that degree of flexibility. The Government will probably disagree--I am not sure that they like amendments--but this would be a tool in the armoury of organisations such as the county trusts which operate reserves, and which depend to a large extent on the efforts of volunteers. It would be sensible to provide the right to ensure that a particular species is protected for what may be a short period time when the matter is relevant. I support the amendment.
My Lords, I thank the Minister for introducing Amendment No. 2, although I share the reservations of my noble friend Lord Monro about the word "appears". It may be an obvious point, but improved and semi-improved grassland will become excepted land; I assume that we can have an assurance that that land will not be mapped by the mapping authority--otherwise, I suggest it would lead to total confusion. I should like to say how much I welcome Amendment No. 35 dealing with the main issues that we raised last time.
My Lords, in adding my voice to the general welcome for the amendment, perhaps I may ask a question about Amendment No. 35, which is not entirely clear. In the Yorkshire Dales, and certainly in the Lake District, there are scattered buildings where small barns are used to store hay in the early part of the winter. When they have been emptied, because the hay has been fed to animals, those buildings are made available, particularly in very hard weather in the early months of the year, as shelter for those animals.
I assume from the wording of Amendment No. 35 that if the building is used for part of the year to house livestock, it would fall within the 20-metre cordon sanitaire for the whole of the year. It is important that it does, and that it is understood that, where a building is used for housing livestock for part of the year and for storing hay for the early months of the year, it will be exempt from the provisions of the Bill; otherwise, people would not know whether there were animals in the building at the time or whether it contained only hay. The only way they could find out would be to go up to it and look through the door. I hope I can assume that such buildings will be exempt for the whole of the year.
My Lords, perhaps I may speak briefly in support of Amendment No. 36 and draw an analogy. Some years ago it became apparent that in cases of real urgency the Secretary of State should be able to make immediate listed building orders. There was a period when developers used to destroy buildings overnight, before appropriate action could be taken to list them, in order to prevent that happening. This provision strikes me as similar. I believe that the noble Lord is trying to make sure that the wheels do not grind too slowly in dealing with these matters.
My Lords, I, too, should like to thank the Minister for introducing these amendments, which we put forward at an early stage in Committee and which were debated during the course of the Bill. Perhaps the Minister will enlarge slightly on his Amendment No. 2--which we are happy to accept. We are slightly concerned about the word "appears" in the reference:
"land which appears to the appropriate countryside body".
I should have thought that grassland either is, or is not, improved or semi-improved grassland. I do not know why that framework has been included. Secondly, will this matter be decided centrally, or will the interpretation vary in different parts of the country?
My Lords, on the noble Baroness's final point and on the queries regarding the inclusion of the word "appears", clearly the approach will be national, but a degree of judgment may well be required in marginal cases. That is why, consistent with other pieces of legislation, we have used the term "appear". We are talking about "improved or semi-improved" grassland, but there will be some semi-natural grassland which is essentially unimproved. It is grassland which, theoretically, might be able to produce a crop of hay but would not be included in this definition. There are marginal areas on which the countryside authorities will have to make a judgment. That is why the word "appears" appears.
As regards the question asked by the noble Earl, Lord Peel, and the noble Lord, Lord Monro, land which is improved or semi-improved will be excluded from the scope of the definition of mountain, moor, heath and down; so we should not generally expect such land to be mapped. That is why I said that this provision would benefit the mapping process, as well as ultimately being of benefit in terms of clarity to walkers and landowners.
On the question of buildings, the noble Lord, Lord Jopling, has misinterpreted the intention of the provision. The intention is to include buildings that are used to house livestock in the same way as other exceptions are written into the Bill--enclosures, pens, etc--when they are in use. We are not, therefore, excepting all buildings which might potentially at some point be used for livestock.
I may have slightly misled the House during my remarks on Amendment No. 37. I said then that the exception would be where access was near dwellings. But, in fact, dwellings remain protected. It is when access would otherwise be prevented by the 20 metre penumbra in relation to livestock that that exception is provided.
Perhaps I may turn now to the amendment tabled in the name of my noble friend Lord Hardy, Amendment No. 36, which was also spoken to by the noble Lord, Lord Marlesford. It would be very difficult to refer temporary exemptions to any authority. There are many areas that have urgent, temporary, "over-the-weekend" kind of exemptions. Moreover, plenty of areas already have nature conservancy areas on access land, and on non-access land, where sensible precautions can be taken without changing the legal position.
Where there is a problem, we believe that the owners of such sites can, if necessary, seek a direction under Clause 26 from the relevant authority for the conservation of wildlife in that particular area. In considering whether to give a direction, the relevant authority must have regard to advice provided by the relevant advisory body. Therefore, it is not a question of whether or not English Nature will be the advisory body; it will be a question of whether the relevant access authority is accessible at that time. We cannot cover all such contingencies. There is a whole experience of managing nature sites on what will now become access land, and elsewhere. I do not believe that we need the amendment of my noble friend Lord Hardy. I trust that he is reassured that Clause 26 will adequately cover the situation in almost all circumstances. I hope, therefore, that he will not press his amendment.
moved Amendment No. 2:
Page 2, line 14, at end insert--
(""mountain, moor, heath or down" does not include land which appears to the appropriate countryside body to consist of improved or semi-improved grassland;").
On Question, amendment agreed to.
Clause 2 [Rights of public in relation to access land]:
moved Amendment No. 3:
Page 3, line 15, at end insert--
("( ) Where on any day a person fails to comply with Schedule 2 or any restriction imposed under Chapter II, and, having been advised by the owner or by a person acting on his authority on two or more different occasions on the same day, on land in the same ownership, of the effect of that failure to comply, he again fails on the same day, on land in the same ownership, to comply with Schedule 2 or any restriction imposed under Chapter II, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.").
My Lords, in moving this amendment I return to a subject that has been a sticking point throughout our deliberations on the Bill. It is the question of introducing a criminal sanction against those who persistently ignore regulations and restrictions under Schedule 2 and Chapter II of the Bill. Many of us feel that the Bill as it stands is inadequate in this respect, as an owner or an occupier would have recourse to the civil courts only against someone who, out of sheer bloody-mindedness, failed to comply with the request available under the Bill to leave that land for 72 hours because he had contravened Schedule 2 or Chapter II.
I appreciate that the Government have always resisted such a suggestion for fear of criminalising trespass. However, I suggest that the access provided in the Bill presents an entirely different situation. As I understand it, to commit trespass a person has to enter land over which he has no right to pass. But this Bill creates a new right of access over 4 million acres of land and, therefore, the general public have a right of access on that land under the legislation. It is only by repeatedly ignoring or resisting the restrictions and regulations under Schedule 2 and Chapter II that an offence is committed. It is not, therefore, the act of trespass as such that is an offence. As I say, this is a very different situation.
We need to remember also that the Bill contains criminal sanctions against owners and occupiers who impede access. I have no problems with that, but I think it essential--and only equitable therefore--that such a sanction should be available to the owner/occupier against those who persistently abuse these new rights and responsibilities. My amendment is very tightly drawn and would only establish a criminal sanction when someone failed to comply on three occasions, on the same day, and on land in the same ownership. Further, the sanction would be set at the minimum level with a fine not exceeding £200.
I suggest that this is not an unreasonable measure to be available to those who wish to protect the management of their land against the very few--I acknowledge that it will only be a small number of people--who may blatantly abuse the new rights and responsibilities afforded to them under this legislation. I beg to move.
My Lords, I support this important amendment. None of us wants confrontation on the ground between people who are roaming and those who own or occupy the land. Our great fear about the Bill is that that will happen; it would be tragic. It seems to me that someone, not necessarily the occupier, who has been given instructions to advise a person that he should leave the land--for example, a gamekeeper, or some other employee of the owner or occupier--might well lose his temper when a person has persistently trespassed on the land after being warned about the sanctions and told that he should not do so. It would be extremely maddening, and could well cause trouble. The amendment suggests a very reasonable way to solve the problem. I hope that the Minister will consider it.
My Lords, I, too, support this modest but vital amendment, as well as the other two amendments in the group to which I have not added my name. The maximum penalty proposed is as low as it reasonably could be without being virtually ineffective. As the noble Earl, Lord Peel, said, the amendment would not criminalise trespass as such. We do not want that to happen as far as concerns accidental trespass, and the Government certainly do not want it.
However, it is worth reminding ourselves that Sections 68 to 71 inclusive of the Criminal Justice and Public Order Act 1994, to which, I believe, the Government have no objection, do criminalise certain types of trespass and impose maximum fines at either level 3 or level 4, depending on the offence. Those fines are very much higher than the maximum fine proposed in this amendment. There really must be some small sanction to prevent abuse.
My Lords, way back on Second Reading I said that if we are to make this Bill effective, the key word is "harmony". I also said that there would have to be some give and take on all sides if we were to produce legislation that would be workable and acceptable to the general public. We have heard Ministers weighing up issues and balancing different considerations throughout the proceedings on the Bill. We have in fact made some progress, except on two or three matters, one of which is now before the House.
We must try to find some way of penalising those few people--there are relatively few of them, but they can be singularly difficult--who want to overstep the mark, ignore the law and create a great disturbance in the countryside when it is unnecessary. As we have said so many times, they are just the sort of people who will cause the damage that we are all trying to avoid--for example, by disturbing nesting birds, raptors and other birds in their peaceful existence on open moorland. In fact, we have no sanction at all; at present we merely have the 72-hour non-event. We should have a much stiffer sanction.
The question of balance is dramatically brought home to us today in those newspapers which mention the penalties that will be imposed under the hunting Bill to be introduced by the Government in the next Session. Draconian measures will be introduced: fines up to £5,000; police rights to stop and search and the confiscation of property. We have talked on previous occasions of confiscating vehicles and motor bikes. That, apparently, can be done under the terms of the hunting Bill, but not the one we are discussing. Everything can be thrown at the person hunting with hounds on his own land except imprisonment. The Government do not want to create martyrs. However, if someone persistently refuses to pay a fine, he could be charged with contempt of court.
One cannot possibly equate the measures proposed in a hunting Bill to be introduced next Session with the measures in the Bill we are discussing today. We must find a reasonable way to deal with those persistent offenders who will cause a great deal of trouble in the countryside. We all know the organisations they represent, which are not friendly to the countryside. A sanction must be available. Therefore, I believe that we should support the amendment of the noble Earl, Lord Peel.
My Lords, I also speak in favour of the amendment. This is a remarkable Bill. When it was first published it was given a cautious welcome both by the country landowners and by the ramblers. That is a sign of how the whole spirit of the Bill works towards harmony and convergence.
I express our gratitude to the Government for having understood so many of the points that have been made from different sides of the House. I believe that what the noble and learned lord, Lord Bingham, called a very modest sanction is probably necessary here in order to avoid confrontation. If this measure were to be incorporated in the Bill, I believe that confrontation would be less likely to occur because people would know that a sanction of this nature existed. I believe that it would hardly ever have to be invoked. It would be a valuable safeguard in the background for that small number of people who might on rare occasions be extraordinarily obstinate and obstructive and damage the interests of landowners and farmers. As I say, I support the amendment.
My Lords, my noble friend Lord Peel mentioned quite rightly in moving this amendment that of course it was a modification of the law of trespass which does not give rise in itself to crime. But just in case the Government are thinking of relying upon standing by the civil nature of trespass, I think that they should bear in mind the dangers that could arise in the circumstances envisaged by this amendment.
Several of my noble friends have said that it would apply perhaps only to a few people. But it could apply to quite a large party of people who had got together hoping to exercise a right to roam but had not been given access. The damage that could be done is something that the Government should bear in mind. Several of my noble friends have mentioned damage to birds in the nesting season, but of course it would go much further than that. There is the potential damage to livestock. There is damage to sheep during the early season. Then in dry weather of course there is the potential damage to woods. This is a situation which must be covered. After all, the offence will not arise until, as the amendment says,
"on two or more different occasions on the same day", warning has been given. Surely when that amount of warning has been given and damage is done, or is likely to be done, it should be an offence to go on refusing to accept the warning.
My Lords, I also wish to support my noble friend Lord Peel. When Mr Michael Meacher has talked about the Bill over the past few weeks he has repeatedly said that he thinks we should search for balance. The right reverend Prelate has just mentioned balance. Throughout the Committee and Report stages noble Lords have repeatedly said that this is the one remaining area--perhaps there is one other--where there is not a balance at the moment. There are sanctions in one direction but not in another.
At the same time I have always understood the Government's point that they do not wish to make trespass a criminal offence because that would imply changing a principle we have held for many years. We must find a middle way. I rather think that my noble friend's amendment has found that middle way. It might be helpful to remember the manifesto commitment that the Labour Party gave before the 1997 election which states clearly:
"We will not ... permit any abuse of a right to greater access".
That implies that the Government rather than landowners should bear the burden of enforcement.
As the Bill stands at present, the burden of tackling any abuse--like the right reverend Prelate, I do not think that a huge number of people will abuse the measure--rests solely on landowners, who will have to pursue persistent offenders through the civil courts. As we all know, that is a difficult and cumbersome process. It starts with the tricky matter of finding out the name and address of the offender. If one thinks of what may arise on moorland or in open country when such an offence is being committed, it is a difficult situation to tackle. I accept the Government's point about trespass, but they should honour the commitment they gave in the election manifesto not to permit any abuse of access. They should provide more effective measures to tackle persistent abuse.
The wording of my noble friend's amendment is directed at persistent offenders. It mentions two warnings, the same piece of land, the same day. This persistent abuse will not occur often, but if it should occur, the landowner should have more strength to tackle it than he currently has. The only real objection that the Government had at the earlier stages of the Bill related to making trespass a criminal offence. There is no doubt that the amendment does not do that. The offence will break the regulations. Anyone who is on the land through the measures in the Bill cannot possibly be a trespasser. I hope that the Government will assist us on this last occasion to deal with this difficult issue and accept the amendment.
My Lords, I speak to Amendment No. 17 which stands in my name. It might appear to have some similarities to Amendment No. 3 of the noble Earl, Lord Peel, but I believe that it is clearly different. The amendment is tightly drawn. It would introduce sanctions only if conservation damage of a serious nature were possible, where that possibility had been accepted by the nature conservation statutory bodies and the countryside body and where there had been full consultation on the matter.
Therefore, we are talking about a situation where extremely serious damage may occur. The amendment would also introduce a penalty only if the offence was clearly persistent and wilful and would demonstrably cause damage. The amendment seeks to prevent damage occurring rather than taking action after it has occurred because in some cases the damage may be irretrievable. It is different from a blanket provision which takes into account not only fairly minor infringements under Schedule 2 but also the whole range of possible infringements under Chapter II, many of which may be minor. The amendment focuses tightly on extremely serious nature conservation issues where prevention has to be better than cure because cure may not be possible.
My Lords, I support both the amendment in the name of the noble Earl, Lord Peel, and that which has just been spoken to by my noble friend Lady Young. There is an imbalance in the Bill and there are some weaknesses. These two amendments seem to me to go to them.
I have been present during the majority of debates in this House and, due in no small part to the tact with which the Minister has conducted his part of the proceedings, they have been remarkably free from the polarisation that such a Bill might have been expected to provoke. The objective of all those who have taken an active part appears to me to have been to ensure that responsible access can be increased with the co-operation and support of the landowners and the managers once the Bill is on the statute book.
We are now at Third Reading and there is an imbalance to which the noble Lord, Lord Mancroft, referred. The Bill, quite rightly, includes provisions--landowners and occupiers could perhaps best be described as the access providers for this purpose--to penalise those who seek to frustrate access. The penalties are there. But at present the Bill does not penalise the access user who seeks to frustrate the lawful restrictions on that access.
The amendment of the noble Earl, Lord Peel, does not relate to the responsible walker or rambler. It relates only to the rogue, the person who deliberately and repeatedly breaks the rules. There is an understandable desire on the part of the Government not to wish to criminalise trespass. But such people are not trespassers. They are lawfully on the land but refuse to obey the lawful restrictions. It is perhaps unfortunate that there has not been more give and take on this issue in earlier stages of the Bill. However, I believe that the amendment properly strengthens the Bill and, to those who will have to make it work, presents the measure as even handed.
I support the noble Baroness's amendment for a different reason: it is different. It points out a weakness in the Bill. Those who would be subject to this penalisation are excluded for good reason but break the rules and trespass repeatedly in a way which is likely to cause damage. That damage may be difficult if not impossible to prove--or possibly only in the very long term. For example, where breeding birds are disturbed or flora damaged it may be months or years before the effect of that trespass is apparent. For that reason, injunction does not provide a suitable remedy because it will not be possible to produce proof to the relevant standard that damage has been done. Only when the last of that species has gone will it be fully appreciated.
I am usually the last person who wants to create yet more criminal offences. There are already too many. But parts of the Bill are likely to be rendered less effective without the sanctions proposed in the amendments. I support them.
My Lords, I support both amendments. Of course there is a difference between them. But, more importantly, there is a similarity. The Bill removes property rights which previously existed. Both amendments seek to ensure that there is not abuse of that transfer of property rights. That similarity is, I suggest, more important than the difference. The noble Baroness says that nature conservation is different; of course it is. But it does not mean that it is more important. It is very important, but so is the point made by my noble friend Lord Peel. I believe that the Government should accept the amendments. I support them both.
My Lords, in an ideal world one would not need the noble Earl's amendment. However, in the rare event of confrontation we think that the amendment could inflame the situation.
Noble Lords will remember that in Committee we endeavoured to remove some of the more trivial and minor provisions in Schedule 2. Members of the Committee did not agree. But the user whose child picks a dandelion or creates a small pool in a stream would be subject to the penalty proposed in the noble Earl's amendment. In the best of all worlds, landowners would use any powers they have in the best possible way. However, the proposed amendment might inflame a situation where someone infringes the provisions in a minor way. It might be unhelpful. We believe that the amendment is too widely drawn.
I understand why the noble Baroness, Lady Young, has brought forward the amendment. We are surprised that the Government have not given more protection as regards the conservation aspect. Indeed, when we moved Amendment No. 98 in Committee, the noble Lord, Lord McIntosh, gave a reasoned explanation as to why it could not be accepted. I shall be interested to hear his reasons if he cannot accept the noble Baroness's amendment.
My Lords, I support Amendment No. 3 to which I have added my name. The response from almost all sides of the House underlines the belief that there should be some form of sanction for those deliberately persistent offenders for whom there is at present no such sanction in the Bill. I urge noble Lords to accept Amendment No. 3. It is very important.
I do not regard the amendment of the noble Baroness, Lady Young, as any less important. I hope that the Government will consider it sympathetically. Perhaps I may say this to the noble Baroness, Lady Miller. We should all love to live in an ideal world. Sadly, we do not. The thrust of our debates in recent weeks has been to balance the freedom to enjoy access over land with the restrictions, codes of practice, understandings and responsibilities that people have in the countryside. I am disappointed by the response from the Liberal Democrat Benches to my noble friend's amendment.
I am happy that my Amendment No. 34 is grouped with these amendments. I have raised this issue throughout the passage of the Bill. Many people believe--I was asked again on radio about it--that access is available now. Farmers in different areas refer constantly to people saying, "We have a right to be here". We know that they do not. I fear that the Minister will tell me that there is no need for my amendment. He indicated previously that he understands the wish underlying my amendment but I should like again to bring the matter forward.
As regards interpretation in a court of law, the noble Lord may well be right. But the Bill is most unusual in that it applies directly to the whole population. We are not talking about two or three people but millions. The Government cannot control the interpretation that hundreds will give to the Bill. It is not possible to identify those who will correctly take advantage of the rights granted to them. It is not possible to target everyone with all the information needed to enjoy those rights to the full.
Much our debate has centred on the provision of information: how open country will be defined; what will be shown on maps; what closures will be allowed and how they will be handled; how walkers will know what tracts of land are available to them on any given day and at any given time. The wording of the Bill has a part to play in helping walkers to benefit from those new rights.
The House has done a good job in building on the Bill that came to us. I urge your Lordships to make sure that the result of our deliberations is a Bill that is clearer and crisper than when it arrived. However, I am still concerned that access to access land does not start until two months after Royal Assent, as I have said before, and will not be completed for between two and five years after that. The Bill should tell the public clearly and unambiguously that they are not entitled to avail themselves of open access until the Secretary of State says that they can. Until that time, sanctions must remain in place to enforce the existing law. I support all three amendments.
My Lords, I start with Amendment No. 34, which is perhaps the least contentious of the three and the easiest to deal with. A large number of people think that they will have a right of access as soon as the Bill is passed. It will be the responsibility of the Government, the Countryside Agency, the access authority, the ramblers and everybody else to be realistic about what will happen. Disappointingly for many of us--perhaps less disappointingly for others--the process will take a long time. Even the fast-track procedures for mountains and registered common land will take a long time. The remaining procedures involving the complete mapping process will take even longer. The right will not be granted straightaway. To that extent the noble Baroness, Lady Byford, is right and it is important that wrong ideas should not circulate about that.
However, her amendment is not necessary. I assure her--as it will be our responsibility to assure the public--that the Bill does not change the existing law on trespass. Existing sanctions will continue to apply until the new right of access comes into effect and thereafter. We are not changing trespass law.
On Amendment No. 3, we have made it clear in previous debates that we do not believe that a mere breach of a restriction that results in no harm or damage should be the subject of a criminal penalty. I agree that the amendment is more moderate than some that were tabled at earlier stages, but we still have serious concerns about the principle behind it. The amendment follows the "three strikes and you're out" principle, although I accept that it is limited to three strikes on one day. However, the Bill is stricter. We have provided for "one strike and you're out". Someone who is in breach of a restriction immediately loses their right of access for the next 72 hours. For that time they will be in the same position as trespassers are currently. That is why I have said that the law of trespass continues. They will have no right to be on the land. If they are found on it during that time, they can be removed in the same way as at present. A landowner does not have to wait until a walker has breached the restrictions three times and does not have to give prior warning before requiring the walker to leave.
The noble Lord, Lord Renton, and others gave examples. Many of the restrictions in Schedule 2 are already criminal offences in certain circumstances. Breaches of the others could be very minor, such as bathing in a pool or stream or allowing a dog to roam on an extended lead. Those are no more than simple trespass in the absence of any damage being done. However, the amendment would apply to them regardless of whether damage was done. Despite what the noble Lord, Lord Monson, the noble Lord, Lord Mancroft, or anybody else says, the amendment would criminalise trespass.
Of course we accept that any walker who is in breach of any of the restrictions should lose their right of access. That is part of the structure of the Bill. We have extended the provisions by making the walker's mere presence unlawful for 72 hours after the breach of any restriction. That 72-hour provision was a concession by the Government. The noble Baroness, Lady Byford, said in Committee that walkers who were aware that they may lose the right of access for 72 hours were likely to think twice before they contravened a restriction. We agreed and tabled an amendment to that effect on Report. The amendment was welcomed.
The noble Earl, Lord Peel, the noble Lord, Lord Mancroft, and the noble Baroness, Lady Mallalieu, talked about balance and quoted Michael Meacher. The noble Earl, Lord Peel, said that there were criminal sanctions against landowners who obstructed access and therefore there was no balance. There is no general criminal sanction. The only criminal offence is when a landowner fails to comply with a court order to remove an obstruction, following the service of at least two access notices. We have gone a long way to preserve balance.
Amendment No. 3 would make a breach of any restriction a criminal offence. It is not limited to repeats of the same restriction. Someone who was warned about two different breaches, however trivial--stepping off a path or bathing in a stream--would be liable to a fine. Someone could find themselves in breach of a criminal law simply for playing a game of football without doing any harm to anyone or to the land. A criminal penalty would be attached to any restriction, including discretionary restrictions imposed by landowners. A landowner could even say that only members of the Country Landowners' Association--or members of the Labour Party--could come on their land. Anybody else on the land would be in breach of a restriction and the amendment would kick in.
We have explained that landowners have existing powers of injunction. It may be easier to obtain an injunction than to pursue a criminal prosecution when they are not able to persuade the police to do so. With the greatest respect to my noble friend Lady Mallalieu, I do not agree with her. An injunction can be sought against a simple trespass, particularly if it is repeated and potentially damaging. It is not necessary to prove damage to justify an injunction. The case could be decided on the balance of probabilities.
My Lords, how quickly could a criminal case be brought to court? A criminal prosecution would have to wait its turn. Priority would be given to more serious custodial cases. It might take months. It is not possible to be authoritative on the cost of injunctions compared with a private prosecution, because they will vary between cases, but they are likely to be higher for a prosecution.
The noble Lord, Lord Monson, cited the Criminal Justice and Public Order Act 1994. That Act said that trespass was a criminal offence only when the trespasser did something to intimidate, obstruct or disrupt a lawful activity on the land. That is not the restriction in Amendment No. 3. The provisions of the 1994 Act would still be a criminal offence on access land. I am sorry, but there is no way in which we can accept the amendment.
Amendment No. 17 is based on understandable and well informed concerns about the impact of breaches of restrictions to protect nature conservation interests on a site. It would apply a fine of up to £500 to a breach of a restriction or exclusion imposed on conservation grounds under Clause 26. It would require that the breach was intentional, had occurred at least three times in the past month and was likely to result in damage.
However, I am not convinced that it is appropriate or necessary to have a blanket criminal offence, even for a breach of a nature conservation restriction, where no harm or damage is caused. I believe that that is the key point. Criminalising trespass on land where access is restricted for conservation reasons would mean that we would be dealing differently with important conservation areas according to whether or not they were access land. That is not rational.
Perhaps I may give comfort to my noble friend Lady Young. I want to convince her that the Bill is already adequate to achieve what she wants. It will significantly increase the protection to wildlife and conservation sites. Part III improves enforcement of wildlife legislation, increases fines to £5,000 and introduces prison sentences for serious offences. It also creates new offences of intentionally or recklessly destroying or damaging SSSIs or disturbing rare animals on such sites, punishable with fines of up to £20,000 in the magistrates' court or unlimited fines in the Crown Court. We believe that that is the right way to tackle real problems.
Where identifiable harm or damage occurs, it will be subject to a criminal penalty. If a certain activity causes a particular problem, such as repeated breaches of conservation restrictions, Clause 17 enables the local authority to make it the subject of a by-law. That is the second leg of the comfort which I offer to my noble friend. English Nature already has by-law-making powers in relation to national nature reserves and European conservation areas, and we have tabled an amendment to Part III which will extend that power to cover all SSSIs. Surely that targeted approach is the right way to deal with any problems which may arise.
It is likely that simple restrictions on access will usually be sufficient to protect sensitive sites; for example, by limiting access to paths or applying tougher restrictions on dogs. The vast majority of walkers--I believe that everyone agrees with this--are likely to observe such restrictions without recourse to the criminal law. As I have already explained, where wilful and repeated trespass occurs, the court will be able to issue injunctions. Where harm or damage occurs, the general criminal law will apply.
I believe that where a breach of nature conservation, closures or restrictions causes significant harm or damage, that is best dealt with through the targeted measures which this Bill strengthens. I am not persuaded that Amendment No. 17 is the right way to achieve what we all want to achieve--that is, the effective protection of nature conservation interests.
My Lords, I thank all noble Lords who have supported my Amendment No. 3. I should perhaps apologise to the House. We have reached a new stage of the Bill and I should have taken the opportunity to declare an interest in that I own land which will be subject to the access provisions under this Bill.
I believe that the right reverend Prelate the Bishop of Hereford summed up the matter: we need a balance to avoid confrontation. That is the issue which we are trying to come to terms with through this amendment. As the noble Baroness, Lady Mallalieu, rightly said, these sanctions will apply only to a very small number of people--those who repeatedly ignore the restrictions and regulations under Schedule 2 and Chapter II.
I did not express a view about the amendment tabled by the noble Baroness, Lady Young. I support that amendment. I believe that it is right and proper that such sanctions should apply to breaches of nature conservation. However, as my noble friend Lord Marlesford rightly said, it is equally important that sanctions should apply not only to nature conservation issues. The regulations and restrictions are imposed for a good reason. Landowners want to seek restriction orders because they wish to manage their land effectively. Such orders are not imposed light-heartedly; they are imposed for a very good reason. As a result, I do not believe that the civil actions which at present are open to owners and occupiers are sufficient.
The noble Lord, Lord McIntosh, said that he has increased the period during which people will be asked to leave land from 24 to 72 hours. We acknowledge and accept that. He went on to say that people who are in breach of what I believe he described as "simple offences" would be caught by my amendment. However, people will be asked to leave land three times--not once, not twice, but three times. If they do not get the message then, quite frankly, I believe that they are worthy of some degree of criminal sanction; namely, a £200 fine. I do not consider that what we are imposing under this amendment is particularly draconian.
Therefore, I am disappointed by the response from the Minister. I am also disappointed, but not unduly surprised, by the response that we heard from the Liberal Democrat Benches. I am bound to make the general comment that farmers from the West Country who read this Bill must seriously wonder what the Liberals do to deserve so many seats in rural Britain in view of the way that they have treated people in relation to this Bill. But that is another point.
My Lords, although I accept some anger from the noble Earl because we do not support this amendment, he will concede that we pushed with the Conservative Benches for the 72-hour extension for exclusion; we pushed for tighter controls on dogs; and we pushed for weekend closures. All those measures had our full support. All the measures to help farmers that the Government conceded received our full support. In many cases we worked with the Conservative Benches and in some cases directly with the Government. I believe that his remarks are unjustified.
My Lords, of course I acknowledge that in some cases the noble Baroness has helped and supported us. I was intending to acknowledge that when we came to discuss the Question That the Bill do now pass. However, on the bulk of the issues in this Bill relating to rural matters, I am afraid that the noble Baroness has not been supportive and she has certainly not been very supportive in the Division Lobbies.
I am afraid that I am not satisfied by the response from the Minister. Therefore, I wish to seek the opinion of the House.
moved Amendment No. 4:
After Clause 2, insert the following new clause--
(" .--(1) A person who intends to enter or to remain on access land during any period from one hour after sunset on one day to one hour before sunrise on the following day shall give prior notice of that intention to the access authority.
(2) The access authority shall draw to the attention of any person giving such notice, the relevant sections of the code of conduct and other information issued by the appropriate countryside agency under section 20.").
My Lords, I make no apology for returning to the subject of night access because I honestly believe that the Government are wrong in treating it in the same way as day access when plainly it carries more hazards. Your Lordships will be relieved to hear that I shall not describe those hazards or rehearse the arguments advanced during earlier discussions, except to say that I believe that the Government's imperviousness to those arguments arises in part from the fact that they appear to think that things will be much the same as they are after this Bill becomes law. They seem to take little account of the millions of acres that will become accessible to the public, much for the first time, or the unknown thousands of people who will take advantage of the access that will become available to them.
I believe that it is wrong--indeed, some might say irresponsible--not to seek to anticipate the consequences of the passage of the Bill and make the necessary provision to ensure people's safety in the exercise of their rights and the peace of mind of others who may be affected by such exercise. As we heard many times in the course of our discussions, it is generally accepted that it is good practice to inform others when venturing out at night in hazardous areas where accidents may occur. Clearly, there is a strong argument for formalising such good practice and giving such information to the access authority for a particular area which will be familiar with the hazards and can tell the visitor of them in advance.
The access authority will thus be able to draw the attention of the visitor to particular hazards or activities that he or she may encounter and give any other advice or guidance as appropriate. The authority will know the whereabouts of the visitor should an accident befall him or her and that may save valuable time if a rescue operation has to be mounted.
I am glad to say that the Government seem to have come some way towards acknowledging the principle that people require guidance. That is in the Government's new Clause 20 which prescribes codes of conduct for the guidance of persons exercising their right of access and others interested in access land. But those codes will be national documents drawn up on a countrywide scale by the Countryside Agency for England and the Countryside Council for Wales. Neither document is likely to be sufficiently detailed or up to date to assist the night visitor to a particular area on a particular day, although subsections (3) and (4) of the new clause open up the possibility of more detailed and specific guidance being provided by subsidiary bodies such as access authorities.
I was impressed by the statement of the noble Lord, Lord Whitty, on the second day of Report stage. He was dealing with Amendment No. 138 advanced by my noble friend Lord Rotherwick, indicating, naturally, his preference for government Amendment No. 104. The noble Lord said:
"It will cover not only the standing rights but also what have been described by the noble Viscount, Lord Bledisloe, as transient rights. There is an obligation to try to maximise the information in various ways. That includes all means from web sites to leaflets and notices in car parks. The obligation will be all embracing".--[Official Report, 7/11/00; col. 1463].
I drafted my amendment with those possibilities in mind. Incidentally, the countryside agency in the amendment should appear in lower case to cover both the Countryside Agency for England and the Countryside Council for Wales. Therefore, my amendment seeks to link the giving of prior notice of a night visit to the receipt in return of relevant guidance and information from the access authority. That is surely a sensible precautionary measure. It is difficult to see why the Government should resist it. It is easily practicable and at minimal cost. It might all be done on a telephone answering machine. There is no penalty for failure to give prior notice or liability on the part of the authority if the information it gives is inadequate. As I said on an earlier occasion, all we are trying to do in this amendment is to give statutory backing to current best practice. I beg to move.
My Lords, I support the noble Lord, Lord Roberts of Conwy. I believe that all of us in this House are aware that this is a listening Government. I have proof of this and I am very grateful. Why, then, will they not listen to the question of night access and why, when they have understood so many issues, do they remain so intransigent on this one? I know that there are not many shepherds, hill farmers and gamekeepers living in the remote access areas concerned, but they still have voices. They are all nervous of people they do not know roaming about at night. I beseech Her Majesty's Government to hear their voices and the voices of animals and birds who live or roost in these areas and do not want to be disturbed at night. Their voices are sometimes difficult to hear. I am speaking also for them.
My Lords, the Government's attitude throughout this Bill to night operations is the biggest mystery of all. Everything we try to do is to help the person who is on the hill at night. They have the right to be on footpaths and so on, but to encourage persons in any way to walk across open moorland at night is the most foolhardy recommendation that one could possibly give.
When I was Minister for rural affairs in Scotland we had responsibility for mountain rescue. One knows of the tremendous and valiant efforts which were made by the Royal Air Force, the mountain rescue teams and the police looking for and finding people--often the bodies of those who had gone out at night or day, misjudged their timing and become lost in the dark and never returned home. Yet a simple notice left on the windscreen of their motor car, at their digs, hotel or police station, or any form of notification, might have saved lives. Not only that, but it would have prevented putting the lives of the rescue teams at risk.
We were often under pressure to make a charge for rescue but, rightly, the government said no; that their duty was to rescue and not make a charge or insist on insurance to cover the cost of rescue. We are here making a simple suggestion: that those who wish to be out at night--I am very much against making any kind of recommendation that people should be on open land at night if they are not sure what they are doing--at the very least should inform the appropriate authority of what they are doing and where they are, so that if they get into difficulties they can be assisted. Why the Government should resist this amendment is beyond my comprehension. I expect that they are going to accept it.
My Lords, this is a vitally important amendment. Is not the worst feature of this Bill--it is a very good Bill in many ways--that it gives the right to roam after dark, which could result in tragedy? If there is fog, mist, cloud or snow and urban people have been given the right to roam but do not know their way about a particular moorland or other part of the country, that may cause serious danger and tragedy. That is such a possibility that in the next Parliament it is likely that, whichever government are in power, they will have to amend this part of the Bill if the amendment is not accepted. It is vital. People could become lost after dark, be injured, killed or fall ill.
Another problem arising from the right to roam after dark is that it will lead to an increase in rural crime, which is already bad enough in East Anglia. The right to roam after dark would be an invitation to burglars, poachers, cattle thieves and sheep stealers. The Government should therefore welcome the amendment. I hope my noble friend Lord Roberts will not mind my saying that the provision should not be confined to those who simply "intend" to enter or remain on access land; it should apply also to those who actually do enter or remain.
If the amendment is accepted by your Lordships this evening, it would be no trouble to the Government to suggest in another place that instead of the words,
"intends to enter or remain", the provision should read, "enters or remains". That simple amendment would achieve the purpose. My noble friend Lord Roberts of Conwy has done great work in tabling this amendment and I earnestly hope that it will be accepted.
My Lords, I listen with care to what the noble Baroness says from the Government Front Bench. I was hoping that the noble Baroness, Lady Young of Old Scone, would have something to say on this issue because I want to raise a point which I certainly have not heard mentioned before.
I was one of the first to suggest, in Committee, that people who go on to access land at night should telephone their intention to an answerphone. Since then, having thought about the matter, it occurs to me that another danger arises when people roam at night which has not previously been discussed. Perhaps I can explain that in my constituency in the Lake District, we had the first example for many years of eagles nesting. The Royal Society for the Protection of Birds--that is why I mentioned the noble Baroness, Lady Young--each year mounted a watch on the nests of those eagles. I believe that is also done in other parts of the country for rare birds.
The society was protecting the nests and the chicks from nest robbers. As I understand it, eggs and chicks can command extremely high prices on the illegal market. If people are allowed to enter and roam about on land at will at night, then it is almost impossible for organisations like the RSPB to keep a watch on the nests of rare birds and protect them from nest robbers during the hours of darkness. That creates a huge problem for those wanting to protect the nests of rare birds in upland areas.
If a person is apprehended near one of the nests, perhaps having found out where the nest is in daylight and crept back at night to rob it, he could easily say that he is there because of his rights under the Bill. But if people had to give prior notice of their intention to be on that land at night, that would be a deterrent to potential nest robbers. This is a new point. I have not heard it raised before and I hope that the noble Baroness, Lady Young, who has so much experience of these matters, will comment on it.
My Lords, I hope the Whip on the Front Bench will allow me to utter one sentence. My point is simply this. The criticisms being made of the right to roam at night apply in theory to the Lake District, yet there is no evidence that the present right to roam in that area is being abused in the way it is suggested it would be elsewhere in the country. It works in the Lake District. Nobody has proved that it does not and that surely gives the lie to the arguments that the Bill will be a tragedy for the countryside, for people or wildlife if we do not accept this amendment.
My Lords, does not the noble Lord realise that there will be a tremendous extension of the area open to access and a considerable increase in the numbers of people exercising their rights? Therefore we are seeking in this Bill to prepare for the consequences of its operation.
My Lords, I accept what the noble Baroness says. I shall be brief. I gave way to some interruptions. I thought the noble Baroness was taking on the role of the Whip and telling me not to repeat arguments that we heard in earlier stages of the Bill, which I accept.
I simply want to say this. Safety in upland areas is obviously important. But the points made in relation to possible hazards to walkers apply in daylight as well as at night. If there is fog, mist, cloud or snow, that is a potential hazard to walkers both by day and by night. Most of the arguments on safety apply 24 hours a day.
I would argue that we need to give walkers advice. We need codes. We need to educate people who want to walk so that they conform to safety procedures around the clock, whether it is listening to weather forecasts, knowing how to use a map and compass or being suitably attired. Those are all matters of safety in the hills. I do not believe that a phone call to an anonymous telephone answering machine giving one generalised information about the area will add to the safety of walkers. We need to educate them and teach them how to look after themselves safely on the hills, with respect for the countryside, the environment and wildlife. That is what the Bill is about and this amendment will not help to achieve that end.
My Lords, I rise simply to ask the noble Lord, Lord Roberts, how on earth he intends to enforce his proposal. For it to be fulfilled will require a tremendous degree of voluntary commitment by everybody affected. That will not happen until, as my noble friend Lord Dubs argued very tellingly, the public education programme has been successful.
My Lords, I did not intend to speak and do so only because I was asked. I want to reassure the noble Lord, Lord Jopling, that if in fact a rare bird of the sort he described were nesting on access land, the current provisions both to put in wardens and prevent accidental disturbance would be perfectly adequate.
We know already that egg stealers are extremely devious and very professional. I do not believe that having to phone an answerphone and leave their name is the sort of thing that professional thieves--that is what egg stealers are--generally do.
My Lords, I rise to support my noble friend's amendment. I am conscious of what was said by the noble Baroness, Lady Farrington, but I believe that things have changed since the previous stage. The amendment refers to,
"the relevant sections of the code of conduct",
and I believe that at the previous stage the code of conduct was not part of the Bill. Therefore, I believe that we are "free" to speak to the amendment.
The situation has changed because, if what is rumoured in the press comes into force, hunting will be banned by the Government. That brings us back to the issue of lamping, which was raised earlier. If hunting is banned, foxes must be controlled somehow. One such way is by lamping at night with bright lights. I believe that the amendment should receive serious attention because we are trying to ensure that walkers are secure.
I take the point that circumstances are equally as dangerous when fog descends during the day. But many days are clear and bright, which is when people walk in the countryside. Therefore, the muddying of the issue as regards daylight and nightlight is not relevant because there are more nights than dark days. I hope that the House will support the amendment.
My Lords, I rise briefly to support my noble friend. He has gone to a great deal of trouble to find a solution to a difficult and thorny question. I realise that the Government have made a firm commitment but my noble friend's amendment will not compromise night-time access. I subscribe to the views of noble Lords opposite because the safety of walkers as such does not concern me. Of course I am concerned if someone damages himself, but I believe that the breath of nanny is a little heavy on this issue. If people want to walk at night and take the risks, that is entirely up to them.
My concern has always been the damage which might be caused to wildlife because of potential rustling, poaching and so forth. I am concerned with the criminal aspect. My noble friend had to table a compromise amendment and therefore it does not address that problem as perhaps he and others would wish. However, the provision that people must inform a local authority would go some way towards deterring potential mischief makers. From that point of view alone, my noble friend has tabled an amendment which is extremely helpful and useful.
My Lords, the noble Lord, Lord Roberts, says that we have been impervious to his arguments. We have not been entirely impervious: at Report stage I said that there were some superficial attractions for prior notification. Indeed, I can see that in some unsafe areas a system of prior notification may be sensible. However, his amendment applies universally to all access land and notification is compulsory in all circumstances for night-time access.
Even if that were desirable, it would create a huge administrative effort to little effect. It is not clear what the access authorities would do with the information. Would they be required to notify the landowner? If so, that would be a huge bureaucratic requirement. One would not expect the walker to be able to identify every landowner over whose land he was walking and so forth.
Perhaps I may reiterate the point made by my noble friend Lord Dubs. There are huge areas of access land to which night access is familiar and frequent in terms of both statutory and voluntary access. If we were to require prior notification in the Lake District, for example, the telephone line would at certain times of the year be inundated with calls which would not be referred to the landowner or anyone else. It is therefore useless information.
We certainly need codes and maximum information, and the access authorities and countryside bodies already have duties in that respect. As was said by my noble friend Lady Young, if there is a problem of nature conservation in a particular area the Bill already provides for local closures or restrictions. I believe that to be the case in relation to problems of land management, vermin control and so forth.
In any event, the requirement would be virtually impossible to enforce. It would require the construction of a considerable bureaucracy and a system of notification thereafter. It does not appear to provide any great benefit to landowners because there is no requirement to notify them. Its effect seems obscure.
Moreover, all experience of access land so far suggests that a prior notification system for night access is not necessary and has not caused serious problems, but noble Lords should recognise that the proposal applies to all access land. It means that, for example, if after 4.30 on a December evening I wanted to walk on to the common land at the back of my garden I would have to notify the authority that I was going to do so. That is completely absurd in relation to a piece of common land within a country town. The same would apply to a great deal of down land.
The approach is far too comprehensive. Furthermore, some of the latter comments reflect the belief that people who avail themselves of night-time access are up to no good. We have had reference to poachers, rustlers and egg stealers and at earlier stages even to devil worshippers. I am not familiar with any of those groups of people but I do not believe that they usually check on the restrictions which apply to the land on which they are carrying out their nefarious activities. The argument that more people now have a right to be on the land can work both ways. In some situations, the more people who are there, the less likely it is that such operations will be carried out. We agree with those bodies who manage areas of access land. The National Trust, for example, indicates that allowing access to a large number of people reduces criminality in those areas.
I believe that the amendment is misplaced in that it misidentifies the problem. In any event, it would be impossible to operate and would apply so universally as to make a nonsense of short night-time walks in many parts of the country. It also adds to the occasional tendency to stigmatise those few people who might avail themselves of night-time access to the more remote areas. That is not to say that in some localities voluntary systems of access notification would not be appropriate, particularly in dangerous areas. At an earlier stage, the noble Lord, Lord Roberts, explained the situation on Snowdonia. That may well be valid but as a general requirement it would not work, it is not necessary and it misidentifies the problem. I therefore hope that he will not press the amendment.
My Lords, I am grateful to all noble Lords who have spoken and made such valuable points, in particular the comment of my noble friend Lord Jopling about the need for the amendment in relation to the safety of birds. I am afraid that I totally disagree with the noble Lord, Lord Dubs. He began by saying that day and night access were much the same. As far as I am concerned, the great difference is that one can see by day but one cannot see by night. At night, one cannot see the unfenced quarry or the hazards which lurk in the dark.
Yes, we are concerned about safety, criminality and all the other factors. The Minister said that there are many areas where people are accustomed to walking at night and nothing untoward happens.
That is, I am sure, the case in many parts of England and Wales but there are also vast tracts of virtually unknown territory that are about to be declared access land. Living on the edge of the Snowdonia National Park, I am very much aware of the dangers that already exist: the fatalities and the accidents that occur in Snowdonia by day. All one can do is simply to imagine what could happen with access at night.
So I do not think this is an absurd amendment in the extent of its application. Yes, of course there is no penalty for failure to notify, and it may well be that where night access is already available in popular areas people will not give prior notification. But surely in the new areas, where hazards abound, they should give prior notice of their intentions.
The Minister says that that will involve a huge administrative exercise. I simply cannot believe that is the case. As my noble friend Lord Jopling suggested much earlier in our proceedings, people could give prior notification by telephone so that at least someone would know their whereabouts in the event that they go missing or an accident befalls them.
I am very dissatisfied with the Government's reply, and am inclined to believe, as my noble friend Lord Renton has stated, that we shall have to come back to this with amending legislation in due course when we see what is the actual effect of this Bill and its consequences. In view of the inadequacy of the Government's reply, I shall test the opinion of the House.
My Lords, I rise to move Amendment No. 5. In the very small hours of 4th October the Minister told the House that the Countryside Agency had advised the Government to extend the right of access to coastal land. He went on to say:
"There was not enough time to sort out the matter and to undertake the necessary consultations, which I fully accept are necessary".--[Official Report, 3/10/00; col. 1427]
Because the Government have such a crowded schedule in both Houses we are to be denied the right to consider, debate and amend any of the regulations which will apply to the whole of the coastline of England and Wales. The procedure will be that of affirmative resolution, which is not the same as the full-blown Bill process. Areas of outstanding natural beauty were regarded as of such importance that they were added to this part of the Bill, yet coastal land covers many more thousands of miles than AONBs.
Access to coastal land is not the same as access to open country: the land itself, the pattern of ownership, the extent of existing access and the level of local authority control are different. Coastal land is subject to forces that do not apply further inland. One has in mind the miles of land on the east coast that have fallen into the sea and the many more which will, sadly, follow over the next few years. Coastal land is the edge of country; obviously, it is also the edge of the sea.
Many noble Lords will be aware that at the moment the maritime industry, of which we have spoken in earlier debates, is not very healthy. Our traditional relationship with the waters that surround us is under threat from global warming, other maritime nations and our actions. The question of open access to our coasts should be removed from the arena of the Bill and considered in the context of a maritime investigation. At least that might provide an opportunity for sufficient government time to consider this important subject properly. I beg to move.
My Lords, we had a fair run at the issue of coastal land at an earlier stage of the Bill, albeit the noble Baroness is right that that was in the early hours of the morning. As to the principle, coastal land is regarded by most people as open country. In the 1949 Act open country was defined as,
"wholly or predominantly of covered mountain, moor, heath, down, cliff or foreshore".
Therefore, prior to this Bill coastal land was regarded, both legislatively and in popular view, as open country. For many people coastal land is the most accessible and popular form of open country.
The noble Baroness is correct to say that the reason it was not included in the Bill was in part because of the complexity and nature of the land and also because the Countryside Agency's advice to us was that provision should be made for it but with widespread consultation to ensure the practicalities of application. It is those practicalities which have led us to insert an order-making power rather than provide for coastal land to be covered by the Bill.
The provision to enable the right of access to be extended by order provides the opportunity to do all the work that is required to deal with complex problems, some of which the noble Baroness referred to, and to take account of experience in the management of other areas of access land. We have given very firm undertakings that we shall consult widely before we ever use that power and that any order will be accompanied by a full regulatory impact assessment. The consultation and the wide assessment of the impact needs to be part of that process, which will be subject to the affirmative resolution procedure. There has been concern about the details. However, those details will be sorted out within that process.
At earlier stages noble Lords debated the definition of coastal land and the various powers to make access work. Those debates indicated that the Government were right to take this matter somewhat slowly because of the complexities involved. Nevertheless, if we are able to resolve the complexities the principle that coastal land is subject to open access should be part of the Bill. I do not guarantee either way that the Government will ever trigger this clause because they recognise the complexity of the matter. But when one is considering a major piece of legislation that deals with open country the possibility of extending it to coastal land, which is beloved by so many walkers and families and should, in principle, be subject to the same provisions, ought to be covered. Whether that can be easily done, how complex it is and what restrictions should be placed on it are matters for a further process, but it should be covered rightly by the provisions of the Bill. I hope that the noble Baroness will not pursue her amendment.
My Lords, I am disappointed by the Minister's response. It is not that I do not accept his argument about coastal land. Indeed, many noble Lords have probably spent many enjoyable hours on coastal land. My reasoning is that coastal land should have been included in the Bill. I believe that the Minister will acknowledge that we have not had an opportunity to debate the matter fully even though we have been able to add the areas of outstanding natural beauty at the last minute and without proper debate in another place. We seem to have a mishmash of picking and choosing what is and what is not a priority in the Bill. Having said that, and having heard the Minister's response, I shall not test the opinion of the House. I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 6, I wish to speak also to Amendments Nos. 8 and 9. We feel that the Government's Amendment No. 19 does only half the work with regard to mines and quarries. Amendment No. 6 is needed to remove liability under the Occupiers' Liability Act 1984. I understand that the ramblers are worried that unless this liability is removed owners will push for land with mines and so on on it to be excluded entirely from the right of access.
The Government have recognised that in deciding the scope of any duty of care owed by the occupier on access land, the importance of maintaining features of historic traditional or architectural interest should be considered. That could include historic features such as abandoned lead or tin mines and quarries or scheduled monuments such as castle ruins. The amendment seeks to ensure that such features are protected by removing liability under the Occupiers' Liability Act for those features. That approach ensures certainty for the occupier; avoids costs for occupiers by ameliorating the need for hazard assessments and increased insurance premiums; avoids the risk of owners removing ancient features for fear of liability; and avoids large tracts of access land affected by historic mining and quarrying having to be excluded by direction from the right of access.
It is important to be clear that while government Amendment No. 19 to Clause 42 will provide for regulations to exclude liability for mines and quarries under the Mines and Quarries Act, it will not remove liability in respect of those features under the Occupiers' Liability Act. If the latter liability is not removed, owners will still have to undertake risk assessments and to fence off mines and quarries on access land. That will impose costs and support arguments for compensation. Alternatively, owners will simply apply for directions to exclude such land entirely from the right of access on safety grounds under Clause 25. That will not be in the interests of walkers and mountaineers. That is a point readily recognised by the Ramblers' Association in previous discussions with the CLA.
If Amendment No. 6 is accepted and liability excluded under the Occupiers' Liability Act for historic, traditional and archaeological features, there will be no need to seek to exclude land affected by historic mining or quarrying; no implications for costs to be borne by the occupiers of such land in making these features safe; and no action by occupiers to remove ancient features.
Among the fraternity of people who will avail themselves of the right of access over access land, there is clear understanding of the hazards. I believe that many of that fraternity would support the amendment.
Amendments Nos. 8 and 9 deal with the question of the extent of the exclusion of an occupier's liability for injuries on his land. By virtue of Clause 13(1) of the Bill, any person entering under the access right is not to be treated as a visitor of the occupier. In other words, he is in the same position as a trespasser in relation to duty. However, by virtue of Section 1(3) of the Occupiers' Liability Act 1984, an occupier can owe a duty to a trespasser in certain circumstances. One of the factors in deciding whether or not he owes such a duty is whether he has reasonable grounds for believing that people may come into the vicinity of the danger.
Clause 13(2) of the Bill provides that in certain circumstances the occupier owes no duty whatever to a person who is exercising an access right. Thus the person does not even have the rights of an ordinary trespasser. However, those circumstances are limited, as set out in Clause 13(2), as amended on Report.
I have sought to extend this exclusion of all liability to include, for example, old barns and so on. During the debate on this and from discussions with the Government, it would appear that the Minister intends the exclusion in Clause 13(2) to apply only to features which are actually on access land. Since buildings are technically not access land, the exclusion therefore does not apply to them. Such a reading of the Bill produces curious effects. For example, "A" and "B" are on access land when a storm occurs. "A" shelters beneath a tree on access land. If a rotten branch collapses on his head he has no claim. However, if "B" takes shelter in the occupier's disused barn and thereby becomes a trespasser, he may have a claim. Furthermore, the fact that the barn is now close to much used access land will increase the likelihood of a duty being found. In other words, the person who breaks the rules is in a better position to claim than a person who obeys them. Amendments Nos. 8 and 9 are designed to deal with this situation. I beg to move.
My Lords, I rise to support my noble friend. In so doing I declare an interest in the amendments. I acknowledge that Amendment No. 19 goes some way towards dealing with the problems we discussed when I moved an amendment at a previous stage of the Bill in connection with quarries and mines. As my noble friend Lord Glentoran rightly said, the amendment does not deal with the question of occupiers' liability. I do not want to repeat what my noble friend has said. He has explained the situation extremely well.
As the Bill stands, there are opportunities for an increasing number of litigious cases unless the Government deal with the question of liability. It is a simple matter. If we are to invite people on to private land it is ridiculous that owners should be left with any liability at all. The Minister has gone so far to exclude liability, will he explain why he has left this packet at the end? There must be a good reason for it. To date, I have not had a good explanation for it. I look forward with interest to hearing what the noble Lord has to say in explaining his case.
My Lords, my Amendment No. 10 is grouped with Amendment No. 6. Unfortunately it has not been possible for the noble Countess, Lady Mar, whose name also appears above the amendment, to stay . She has a great deal of experience with animals in rural situations. I probably need to declare an interest as someone who has been involved for almost 40 years in livestock rearing and in hill land management.
I have read carefully the Minister's reply to the amendment I moved at Second Reading. As I understand the position, it is a little more complicated than that reading of the Minister's reply seems to suggest. Under Section 2 of the Animals Act 1971, the keeper of an animal which causes damage has strict liability if three conditions are met; meaning, that there will be no need to prove negligence. The first of the three grounds is the one that I raised when trying to gain a better understanding of the Minister's reply at Second Reading. The owner is likely to be liable for damage if,
"the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe".
Under Section 5 of that Act the liability does not apply to trespassers. Therefore, at present, the Act creates a liability only for livestock that are being grazed in the vicinity of public highways and footpaths, not on land where the only access is liable to be by trespassers.
As far as concerns the access land proposed under the Bill, there will be no trespassers other than any who perhaps contravene or have flouted the stipulations laid down in Clause 2; and, of course, that would have to be proved to their satisfaction. Therefore, all this land will carry a totally new liability for the livestock owner unless an amendment such as that which I have tabled is accepted.
The types of ordinary livestock which might unexpectedly cause damage when faced with a stranger are bulls of any age, let alone those over 10 months, stallions of any of the many breeds of horses, rams, billy goats, geese, goats and flighty heifers or any species whose maternal instincts can be aroused in the protection of their young. If the alternative is that these animals must be housed during those seasons or continuously all the year round, that will require increased building accommodation and labour and therefore increased costs for the person who is keeping them.
I very much welcome Amendment No. 2. The fact that access may no longer apply to improved or semi-improved grassland gives considerable reassurance on some of my earlier worries. One person I spoke to in that context was worried about what would happen to people who tried to claim access to land on which young thoroughbreds were kept. That will no longer be such a worry. There is no doubt that some animals are easily upset and can easily cause damage.
There are still the Occupiers' Liability Acts which impose a duty of care when access amounts to trespass; and that always remains. In Committee the Minister said that 98 per cent of bulls would not be on access land. But now that there is a more generally accepted policy of leaving large numbers of male calves entire, those numbers are likely to change. I had thought that there might also be some need, when dealing with remote steadings in mountain and moorland areas, to ensure that there was in the vicinity some area of land other than the garden that is not marked as access land and could be used for excitable animals. Amendment No. 2 probably takes care of that situation and I am most grateful for it. Such animals may be perfectly peaceful with their customary handlers but can always be upset by strangers and particularly by dogs. I hope that my amendment or something like it will be found acceptable to the House. I presume that the stipulations on dairy bulls over 10 months of age, which were contained in the Wildlife and Countryside Act 1981, will continue to apply but only to fields on which there is a right of way.
The increased use by the public of the New Forest has had a strange and interesting side-effect. I am not sure whether the verderers have strict liability for the New Forest ponies. But I have a sense of responsibility, if nothing else. Over the years they have culled any animal that appeared to have an excitable temperament. One of the verderers to whom I spoke is now worried that the breed may be losing its vigour. That factor has to be considered even with some of our domesticated animals.
I should like to ask your Lordships to consider the liability that exists with animals whose main potential for unpredictability comes under the situation described in the second condition of the 1971 Act. That deals with the likelihood of damage due to characteristics of animals that are not normally to be found except at particular times or in particular circumstances. Halsbury's Laws uses as an illustration that of a bitch with her litter. It would not take very much legal argument to extend that to any animal with its young. Some suckler cows have been traditionally kept on land which will shortly be defined as access land. With the current trend towards environmentally friendly management and grant aid, the policy being promoted means that these numbers are likely to increase.
Traditional hill breeds are recommended because of their foraging ability. Some hill breed cows can be relatively aggressive when they have young calves. That can last for anything from six to eight weeks. That is even more pronounced in their reaction to dogs. The vision of a farmer being required to tether individually a whole herd of cows with their calves at foot in order to steer clear of liability when he is being urged to use cattle to graze his ground for the environmental benefits that will bring defies logic, let alone practicality. I do not know where such an owner would stand under the Bill if he tried posting warning notices.
The Bill as it stands will immensely increase the liability of the farmer or owner. The powers that be have unwittingly illustrated that. In March the Countryside Agency published a guide entitled Out in the Country. It may soon be the bible for all those enjoying responsible access. It states:
"Cattle particularly accompanied by calves, can be suspicious of dogs and on occasion may react aggressively to them. If this happens and you feel threatened, you should let go of your dog's lead and move quickly to safety, taking the shortest route to a suitable exit along the field boundary".
That counsel of perfection overlooks the fact that most of us would be hard-pressed to outrun an irate cow to the nearest hedge, let alone to a suitable exit.
The proposed insertion in the Occupiers' Liability Act 1957 contained in Clause 13 of the Bill creates the impression that the Government's intention is that the new right of access should not impose additional new burdens on landowners and occupiers. My amendment is necessary to achieve exactly that end.
My Lords, it is with some regret that I find that I cannot support Amendments Nos. 6 and 8. I welcome Amendment No. 7, which represents a small concession by the Government. Perhaps I may say to the noble Baroness, Lady Carnegy, that it is a quite common practice to leave holes in drystone walls for sheep to get through. While the noble Baroness and I might find it difficult to get through such holes, smaller people can do so. Indeed, my daughter used to enjoy doing so while I had to lumber over the stile.
Amendments Nos. 6 and 8 suffer from one of the faults about which many noble Lords have complained during previous stages of the Bill. I refer to a lack of clarity and precision as to what exactly they mean. The phrase,
"any historical, traditional or archaeological feature", is yet another recipe for lawyers earning lots of money for working out what those words mean in relation to features on the ground.
At a previous stage I said that I would have been happy to see the removal of the word "natural" from features of landscape. That remains my position. However, no amendment to that end has been brought forward. I very much regret the fact that the Government have found themselves unable to accept that principle.
When people, whether they are hill walkers, climbers or whatever, go onto access land--whether it is moorland or mountain--they should do so at their own risk. For that reason, the general principle should be that landowners and occupiers should not incur any liability unless they are being obstructive and trying to stop access or they are behaving recklessly. I regret that, throughout our discussions on the matter of liability, the Government have been unable to accept that principle. As a result, we shall encounter difficulties in certain areas.
However, I am glad that the Government have found practical ways of moving forwards in this regard. At a previous stage they accepted that owners and occupiers should not incur liability for water features. I only regret that they have not found it possible to extend that acceptance to rock features, where the position strikes me as being somewhat similar. I should like to ask the Minister what is the position in the case of rock features that are not natural. Last night I spoke to one of my noble friends who is a landowner. His land contains two quarries which may be of Roman origin but which, despite their great age, are not natural features. When he comes to reply, can the Minister tell the House what the owners or occupiers of land containing rock features which are not natural should do to absolve themselves of liability under the provisions of the Occupiers' Liability Act 1957? It would be helpful if the Minister could tell the House what actions should be taken by owners in those circumstances.
Government Amendment No. 19, which we have yet to reach, will be helpful in this respect but it does not go as far as we would like. If the Minister is able to give the House a clear understanding of their intentions as regards what owners are supposed to do, that would be extremely helpful. As I have said, although I regret that the Government have not gone as far as I would have liked on the question of owners' liability, given the vague wording on land use contained in the amendments before the House, I regret that I cannot support them either. I thank the Government at least for meeting this point half way.
My Lords, before the noble Lord sits down, I am a little confused by his arguments. I believe that what he is saying is that the Government have not gone far enough. I would agree with that. However, he is also saying that the amendment tabled in the name of my noble friend does not go far enough because the noble Lord would have liked to see the word "natural" removed from the Bill. That would have encompassed everything and thus would have removed liability altogether. Given the noble Lord's position, why is he opposed to removing liability from historical, traditional or archaeological features?
My Lords, I think that I explained my position. The words "historical" and "traditional" are not clear and would provide a recipe for litigation. Although many features will be plainly historical or traditional, I can think of many others where the definition could be argued. It is my view that, once the Bill has been enacted, the more that can be achieved by agreement and sensible discussion and the less through the law courts, the better.
My Lords, I rise to support my noble friend the Duke of Montrose in his amendment, in particular as regards dogs and their potential to cause annoyance to livestock and wildlife. As my noble friend pointed out, this can be a serious problem.
I do not believe that it is equitable for a landowner or occupier to be held responsible for an event that was first instigated by a dog belonging to a person walking on the land or even an animal belonging to a trespasser. The whole issue of dogs on access land was raised in Committee. The noble Lord, Lord Whitty, promised to come back with a statement on the matter. To that end, he has written to my noble friend the Duke of Montrose. I have had sight of the letter. It deals in part with the issues that have been raised, along with matters such as disease and parasites. I appreciate that this is not the time to discuss those points.
However, the Minister also stated that this might be dealt with by the relevant authorities. They will impose restrictions and develop codes of conduct. It might be appropriate now to suggest to the Minister that the issues with which we are dealing tonight should be included in those codes; namely, the irritation or annoyance of livestock by dogs. In that way, dog owners will be made aware of the problems when they are passing through areas being grazed by livestock. Owners must realise that dogs can be instruments of great annoyance to livestock and wildlife.
My Lords, because we have reached Third Reading, I shall not rehearse the debates that we have already held at some length on this matter. Mention has been made again today of the need to establish balance in the Bill. We feel that that point of balance has now been reached. At earlier stages there were many points on the matter of owners' liability which caused us concern, but we are grateful to the Government for having moved to meet those concerns both at previous stages and with the government amendments tabled today.
We felt that it was only right that the provisions in the Bill as regards owners' liability had both to add up and to be intellectually coherent. However, we were also concerned that the Bill should not tempt an owner to remove a feature, perhaps one that forms an important part of our traditional landscape. I am thinking of dry stone walls or bridges within an area of access land. My noble friend Lord Greaves covered that point well and has certainly made me think about the issue again. We were also concerned about natural features, but the government amendment tabled on Report has appropriately eased that debate. Similarly, as regards the features referred to in Amendment No. 6, we believe that the provisions contained in new Section 1A to the 1957 Act, as set out in Clause 13(3), are an appropriate way to deal with them.
Government Amendment No. 7 is similar to one which we tabled at an earlier stage. We were most grateful for the assistance we received from the noble Baroness, Lady Carnegy of Lour. The Front Bench had in mind here features such as gates and stiles rather than walls. Indeed, we thought of it as the "Ronnie Corbett" rather than the "Greaves Junior" amendment. Nevertheless, the government amendment will work well.
Amendment No. 8 seems to be drafted rather too wide. Occupiers should be subject to a minimum level of liability and responsibility. Amendment No. 9 extends the issues to land or features adjacent to access land. I think that that would be inappropriate. We are dealing with access land in the Bill. For that reason, it would be wrong to extend the provisions.
As regards Amendment No. 10, I think that my noble friend Lord Greaves is a "rocks" rather than an "animals" person. My noble friends and I have not felt so far that an amendment of this kind was necessary. I wonder why, for example, the national parks authorities have not pressed for an amendment of this kind. National parks often maintain animals on land to which the public already has access. I can assure noble Lords that the ponies on Dartmoor and Exmoor are quite capable of being jolly vicious if they put their minds to it. Given that, I rather doubt whether such an amendment is necessary.
My Lord, I have some sympathy with the concerns expressed about the traditional, historical and archaeological features. I hope that the Minister will be able to reassure the House that Clause 13(3) really does cover owner liability. I am not convinced that it does. The rather subtle phrases about having regard to the fact that the owner should not be put under undue financial liability and that it is important to maintain the character of the countryside and so on, do not seem to go quite far enough in absolving owners from actual liability and responsibility for damage caused by those features. I have an open mind about the issue, but I am concerned about it.
The noble Duke has identified a problem that I had not thought of. I take the point of the noble Baroness, Lady Hamwee, that national park authorities have not raised the issue, but you do not need to have a dog with you to be quite frightened by flighty heifers, never mind about other more aggressive animals of the male kind. There is a real problem here. I hope that the Minister will be able to answer the noble Duke in a convincing way, otherwise I shall remain quite concerned about this issue.
My Lords, this is a fairly wide-ranging group of amendments. I shall speak first to the two government amendments. Amendment No. 7, to which other noble Lords have referred, relates to "under" a gate, style or fence. As the noble Baroness, Lady Hamwee, said, we were concerned primarily with fences previously. But you learn a lot as you go through legislation such as this, and you discover that there are such things as hogg or hoggets holes, through which sheep can walk under stone walls. I had never previously heard the term "hogg" referred to as a sheep but, as I say, we learn. The amendment will provide for such a contingency and meets the anxieties which were expressed in relation to fences at the previous stage.
Turning to government Amendment No. 19, I should explain that regulations made under Clause 42 provide that the fact that land is subject to the right of access is to be disregarded in deciding whether or not the land is a "public place" for the purposes of a specified entitlement in other legislation provided for different purposes. The amendment will therefore clarify that such regulations can be made in relation to things omitted to be done as well as things done.
Amendment No. 19 will enable regulations to be made which would provide that access under the new statutory right may be disregarded in determining whether a disused mine shaft or a quarry is a statutory nuisance. I think that will clarify the position on a number of matters.
The remarks of the noble Earl, Lord Peel--and, to some extent, those of the noble Lord, Lord Greaves--tempt me into a further, quietly philosophical, debate about the question of liability and balance within the Bill. I spoke at some length on this issue at the previous stage; I do not intend to do so today. Reducing the liability of those affected by the extension of the right of access to their land--the owners and occupiers--to what would otherwise be the liability to trespass, is part of the balance of the Bill. Where even that relatively minimal liability makes them extremely vulnerable in relation to, for example, the natural features and the boundary features to which we have referred, we limit it yet further.
But I am not prepared to accept that there is no liability on the part of occupiers and owners of land, any more than I would in respect of owners and occupiers of any other property. The liability is low and is contained by omitting the most vulnerable features. By these further exclusions, I believe, as does the noble Baroness, Lady Hamwee, that we have now got the correct balance in the Bill.
Amendment No. 8 seeks to achieve the obliteration of liability in almost all circumstances. For the reasons I have stated, I cannot accept the amendment. It would seriously undermine the balance we have achieved.
Amendment No. 6 deals with the issue of historical, traditional or archaeological features. We have already dealt with this. The guidance in Clause 13(3) would require the courts to have regard to the importance of maintaining such features. This would ensure that the liability arising from those features would, in practice, be very low indeed. The courts would have to take that into account, and that would involve an element of judgment by the court. It would also avoid the kind of definitional problems to which the noble Lord, Lord Greaves, referred.
I can see no reason to exclude all liability from such features, particularly as some will be fairly indistinguishable from other features of access land. Nevertheless, it is important that the courts are given the duty of taking into account the historical and traditional features as well as the question of putting an undue burden on the landowner. We have therefore covered the point--perhaps more indirectly than she would have liked--of the noble Baroness's amendment.
Perhaps I may now deal with Amendment No. 10 and the point made by the noble Duke, the Duke of Montrose. I think I now understand what he is talking about. However, the noble Duke's amendment would place users of the statutory right of access in the same position as trespassers if they were harmed by a dangerous animal. In general, the owners of animals are strictly liable--that is to say without proof of negligence--if the animal belongs to a dangerous species, or is known to be dangerous and causes an accident. As the noble Duke said, that strict liability does not apply to trespassers.
But an owner will be liable if he is negligent--for example, if he turns out a bull with known dangerous tendencies on land frequented by the public without proper warnings. The Animals Act envisages dangerous animals being kept to protect property. Given that we are introducing in the Bill a new right of access, we do not believe that it would be appropriate to remove this liability in the terms suggested by the amendment.
My Lords, animals which are dangerous or known to be dangerous will still be the liability they are at present. I am concerned about animals which fall under the other three categories, where there is a possibility of people being injured or damage being caused merely by the size of an animal or by an animal's unusual reactions during a certain season. I am talking about ordinary animals which have no general potentiality to damage but for which, under these circumstances, the owner has a liability.
My Lords, in such a case the court would have to decide whether it was reasonable to foresee a liability and assess whether the owner had been negligent in respect of the normally docile animal to which the noble Duke referred.
The noble Duke indicated that increased access to land is liable to increase the number of cases--I assume that is what lies behind the amendment--where such creatures would be provoked and, by stampeding and so on, would cause damage. The likelihood of that is relatively low but, were it to arise directly, the court would have to take into account whether the owner should have known that would happen and whether he had acted unreasonably in allowing those animals to be pastured.
I would not have thought that simply having the trespasser liability would prevent livestock from continuing to pasture on access land in normal circumstances--unless, of course, the owner knew that there were dangerous propensities in a particular animal or type of animal; otherwise, if the owner was acting reasonably in the way described by the noble Duke, he would not be found liable at court.
I have some sympathy with landowners who have concerns about injuries sustained by encounters with animals. We shall be looking to guidance from the countryside bodies to ensure that people appreciate that livestock--even docile livestock--can cause damage or injury if provoked, even if unwittingly provoked. The onus will be on walkers primarily to take sensible precautions. I would hope that greater information on this issue will follow as part of the general duties of the countryside authorities, and that a court would use its judgment in the kind of situation about which the noble Duke is concerned.
Amendment No. 9 would extend the exclusion to features adjacent to access land. I find it slightly odd that in dealing with a question of liability on access land we are now bringing in adjacent buildings. I have heard the noble Viscount, Lord Bledisloe, speak at length on this issue, both in this Chamber and outside. I understand his concern. However, the amendment would create a situation whereby a building that had not been directly affected by any right of access would change its liability. In most cases, all the landowner would have to do if a building was dangerous--as he would in relation to dangerous quarries, to reply to the noble Lord, Lord Greaves--would be to put up a notice to that effect. But under the amendment the building would be on non-access land. It would be no different, therefore, from a building anywhere in the country. The fact that someone owns a building on a busy street that is about to become busier, does not absolve that person from liability for people who might, lawfully or unlawfully, enter that building.
I see no reason why owners of land adjacent to access land should be treated any differently from any other property owner in this respect. It cannot be right that someone who happens to own a building close to access land should be treated any differently. If we think, for example, of the safety of children, we could not accept that a house on the edge of a village that abutted access land should not have the same obligations as the owner of any other property within the village. If the building was dangerous or ruined, some elementary precautions would be the responsibility of the landowner. We should end up in an absurd situation were we to accept Amendment No. 9.
I hope that I have dealt fully with these amendments. I shall move the government amendments at the appropriate time.
My Lords, perhaps I may take this matter a little further. My amendment attempts to deal with animals not belonging to a dangerous species. The liability for a dangerous animal still obtains. So far as I understand the law, the fact that a livestock owner knows that cows with calves are likely to be upset gives him a strict liability, whether or not there is negligence. Because of that, anyone on access land might be able to bring a case against the owner because of the fact that the upset animals had gone for him.
My Lords, a court would nevertheless need to take into account whether the owner had made reasonable provision, knowing the nature of the species and the nature of the land.
My Lords, perhaps I may ask the Minister a question on an important point. As I recall, when the Bill began its passage in the other place, the Government made a plain commitment that its provisions would not cause inconvenience or cost to owners and occupiers. However, it is clear from what the Minister has said that the Government now acknowledge that owners and occupiers will incur costs because of occupiers' liability precisely because of the access provisions in the Bill.
The Minister has made his case--he shakes his head. I know that he has gone some way down the line in dealing with the case of mines and quarries, but the occupiers' liability remains and that will bring a cost to the owner and occupier. I simply do not see how the Minister can deny that.
My Lords, I deny it, as I did many months ago at Second Reading, when I referred to the vast tracts of countryside which are already subject to access provisions. For example, parts of the national parks have had arrangements with landowners that they would meet liability, but although they have some 5 million visitors only one case has been brought. That is a minimal change in liability. It is also the case in relation to the Peak District national parks. There has been a minimal number of cases, and a minimal number of successful cases.
I appreciate that we operate in a litigious society. Nevertheless, all standing experience suggests that successful claims for liability on existing access land have been negligible. I have no reason to believe that that should not continue to be the case with the increase in access land provided by the Bill.
My Lords, needless to say, I am disappointed with the Minister's response. However, I have some understanding of where he is coming from. During the course of debate on the Bill, the Government have given a great deal to various parts of the Opposition and they have helped, graciously and competently, to improve the Bill significantly. I am extremely grateful for that, as, I am sure, are other noble Lords.
I wonder about the Government's argument regarding liability. I do not believe that they are winning the intellectual argument. I think the Government feel that they have gone far enough and that they cannot give any more--particularly to landowners and farmers. I hope that I am allowed to speak to the amendment tabled by my noble friend the Duke of Montrose. I understand the Minister to say that, under the Bill as it now stands, if a bull is liable to do harm or damage to a walker, the farmer must not put the bull on access land because it would be considered by the courts to be unreasonable. That is immediately interfering. Such a provision is very dangerous and it should not be in the Bill.
I turn, secondly, to my Amendment No. 8. The noble Lord, Lord Greaves, spoke to it at some length and asked the Minister a series of questions which went to the heart of the issue. In the past, I have taught people to climb and abseil on old and ancient quarries. I have taken parties down old and ancient copper and tin mines. It is possible to get into them; they are dangerous; people die in them and will, I dare say, continue to die in them. They certainly cause considerable problems.
Also, as a quarry owner when I was working for Redland plc, as a commercial enterprise, under the present law we were rightly forced to fence all our active quarries. There are a number of quarries--admittedly fairly small--and a number of old tin mines and the like which are not protected in any way as regards the general public. I want the Minister to tell me what the Government expect a landowner to do who has those features on his land. As I understand the Bill, the landowner retains liability for any accident that happens in those quarries, mines or whatever as a result of people having a right of access to the land.
The Government have not yet gone far enough. I am not sure that they have thought through the detail. I was grateful that the noble Baroness, Lady Hamwee, half admitted that she had not got to the core and the detail of the problem at earlier stages of the Bill. I hope that I do not misquote the noble Baroness. I beg leave to withdraw the amendment.
moved Amendment No. 11:
Page 12, line 5, leave out subsection (1) and insert--
("(1) Every access authority or district council shall take such steps (whether by the appointment of wardens or otherwise) as appear to it to be necessary or expedient to achieve the purpose set out in subsection (3) as respects access land in their area.").
My Lords, I shall speak to Amendment No. 13 which is grouped with Amendment No. 11 after the noble Lord, Lord Williamson, has spoken to Amendment No. 13.
In our earlier debates the matter of wardens was raised on many occasions. The Liberal Democrat Benches have suggested that the term "warden" is not appropriate. I know that at this stage of the Bill we cannot change that term unless the Government decide to substitute "ranger" for the term "warden" when the Bill returns to the other place. I suspect that they might gain support for that from all parties.
We believe that the successful implementation of the Bill depends on the ability of local authorities to put in place wardens. They could be part-time as opposed to full-time wardens or they could be voluntary personnel. I believe that wardens should help to ensure that restrictions are observed. However, their purpose is also to offer general help to the public to enable them to enjoy access land. They are particularly useful at honeypot sites. I hope that I have adequately summarised the duties of wardens. I do not consider them to have a "lock-up" function, as it were. That is a dreadful use of English, for which I can only apologise. The function of the ranger or warden is to assist people as well as to ensure that restrictions in regard to access are observed.
I thank the Minister for meeting us again only two days ago to try to resolve the difficult problem of wardens. I would not dream of putting words into his mouth but I think he will agree that we both accept that there is a problem with regard to wardens and the provisions of the Bill. We have heard in other contexts that local authorities and bodies such as the Countryside Agency have had to stop funding certain activities due to a lack of central funds and competing demands. I have in mind particularly the situation in Wales where the Countryside Council for Wales has had to reduce its support for biodiversity action plans due to lack of funds. The Government recognised this problem and have brought forward an amendment to tackle it which we shall not debate tonight. However, as I say, the Government recognised that the problem existed and that it needed to be tackled.
We are also concerned that local authorities may acknowledge a need for rangers or wardens but, as they have no statutory duty to employ them, may fail to vote funds to this area. Amendments Nos. 11 and 12 simply place a legal duty on local authorities to take any steps which they believe are necessary to achieve the objective I am discussing. As the Minister has said at earlier stages of the Bill, the Government are making a sum of money available to local authorities--I describe it as a pot of money--to support the purpose and thrust of the Bill. However, at the moment within that pot of funds no money is specifically allocated to the provision of wardens. Nor is the Minister--perhaps he will confirm this again--prepared to ring-fence the amount of money that local authorities will receive.
We have a problem here. I moved the amendment on 7th November (at col. 1428 of Hansard). Its basic aim is as stated:
"Every access authority or district council shall take such steps (whether by the appointment of wardens or otherwise) as appear to it to be necessary or expedient to achieve the purpose set out in subsection (3) as respects access land in their area".
Under the terms of the amendment authorities are obliged to take these steps. They cannot fail to take them because of a lack of funds.
The Minister indicated that he hoped to be able to bring forward a measure on this issue. Unfortunately that has not occurred and therefore I propose this important amendment. All of us want the Bill to work successfully but further statutory measures are needed with regard to some of its provisions. I beg to move.
My Lords, I support Amendment No. 11 which has been moved by the noble Baroness, Lady Byford. In doing so I speak also to Amendment No. 13 which stands in my name. The grouping follows the usual mysterious practices of the House. However, I accept that and I shall speak to the two amendments.
The amendment which stands in my name reflects to a considerable degree an amendment which was put forward at an earlier stage by the noble Viscount, Lord Bledisloe. However, it has two important differences. First, it does not make reference to by-laws. Secondly, it inserts quite deliberately after the requirement for the access authority to take steps the words "if any".
The point of Amendment No. 13 is one which has already featured in our debates this evening in relation to Amendment No. 3 in the name of the noble Earl, Lord Peel. However, the way in which I approach it in this amendment is different. The substance of the issue, however, is the same. While we have established in the Bill the right to roam and the few necessary conditions for the exercise of that right in a proper balance with the interests of owners, occupiers and the land itself, we all know that in general this right will be exercised responsibly to the benefit of the public.
However, there is genuine concern about the few cases which will probably occur where someone repeatedly and persistently does not respect the conditions, for example, keeping a dog on a lead in the vicinity of livestock and so on. The question is: what is to be done in those circumstances? Are the current sanctions sufficient? They may be in the case of criminal law sanctions, but they will not apply in all cases. There will not always be by-laws. We have just passed Clause 17 which does not lay an absolute duty on the access authorities to make by-laws. They may make them but in some cases they certainly will not. Therefore the criminal law will not apply in all these cases and the only other sanction is the temporary banishment for 72 hours. Amendment No. 13 puts a duty on the access authority to act--it does not have to take steps but it is possible for it to do so--to prevent repetition of persistent failure to comply with the conditions of access.
I know that there are other possibilities in this regard such as the criminal law or injunctions. However, since I have been a Member of the House of Lords I have been much struck by the realisation that we are not a typical cross-section of the public. We in this House seem to believe that it is easy to apply to the criminal law and to take out an injunction. None of my friends will touch the criminal law if they can help it and nothing in the world will induce them to take out an injunction. Placing an obligaton on the access authority would be more effective than leaving it to an individual occupier who would probably suffer quite a lot rather than become involved in this morass. That is the purpose of the amendment.
Finally, the amendment does not create any new criminal offence. It is, therefore, quite different from the earlier proposal from the noble Earl, Lord Peel. And it does not criminalise trespass. So none of the objections to the noble Earl's amendment--I noted them carefully--arises in relation to Amendment No. 13.
My Lords, when the Minister replies, I hope that he will take this final opportunity to dispel the real anxieties which exist with regard to Amendment No. 11. It is clear that, for example, on National Trust land, in national parks and so on, the absence of wardens could lead to a rapid deterioration of amenities available to the public. There is an issue here. After all our deliberations, anxiety remains about the apparent contradiction in the Bill as drafted. Clause 18 refers to the possibility that the appointment of a warden may be seen as necessary by the local authority; but it then provides that the local authority may respond to that necessity. It might be argued that if it did not respond to that necessity it would be guilty of a dereliction of responsibility. There seems to be a contradiction. In dealing with the amendment, I hope that my noble friend will be able to dispel the anxiety.
My Lords, the noble Lord, Lord Judd, puts clearly the difficulty. Anxiety has been expressed on all sides of the House on Report. Since then I considered carefully the issues surrounding the amendment and, in the light of those discussions, asked organisations for their views.
Some may believe that the Association of National Parks Authorities is exceptional because it has money dedicated to the organising of open access land. Nevertheless, its view is valid because it has the most experience of managing such land. It believes that the consensual approach that the local access forums will bring is right. The association also considers that each local access forum will have to decide on the appointment of wardens because, as we explained on Report, there are several different approaches. People may be appointed for the purpose; or agreements may be made with voluntary sector people or landowners.
The funding is the heart of the matter. If they have the funding, all responsible local authorities must decide to manage the open access land properly. We cannot legislate for incompetent or careless authorities. If we could do so, we would not have local authorities which run education or social services badly. By imposing a duty, we do not make them competent or careful. Providing sufficient funding can help those careful and competent authorities to fulfil their duties. But when budgets are difficult, those people who have the vote, over whose land access is being exercised and who are involved in the everyday management of that land will have to argue their case with the local authority. They will be the people who use the education and social services of that local authority.
I do not want to diminish the seriousness with which these Benches regard the proper management of open access land. However, we believe that at the end of the day those fine judgments on the use of resources must be left to local authorities. In a year when local authority grants have been increased somewhat, it may be easier to propose such an amendment. But should resources become tight, with similar budget cuts to those experienced by most counties over the past decade, local authorities alone will have to choose whether they put their resources into management of the countryside. That will be the choice of their voters in the area.
Amendment No. 11, moved so well by my noble friend Lady Byford, is a mild proposal. While it gives a local authority immense discretion, it gives a push in the right direction: to set up a warden or ranger service. In almost every other organisation in a similar position--it may be the Forestry Commission, a wildlife trust or a national park--rangers, wardens or gamekeepers are present, not in numbers or in a provocative way, but to help to manage the land and ensure that people behave in a reasonable way. Even private estates are prepared to employ a ranger so that visitors can be conducted around the estate, enabling children from the country and urban areas to understand how farms and estates work in the countryside. That can be done without enormous expense to the bodies involved. If we listen to the Chancellor, this country seems to be awash with money. Therefore, money spent on improving such areas--we are keen to see them improved--would be well spent.
I hope that the Minister will support Amendment No. 11, which is so mildly worded and encouraging in its result, and Amendment No. 13. Both amendments demonstrate the spirit that we want to see invoked. It will be a pity if the noble Lord allows this opportunity to pass.
My Lords, I support Amendment No. 11. I am not convinced by the arguments of the noble Baroness, Lady Miller. Voting for wardens for access land is not analogous to wanting good schools and social services. A large number of people have a considerable interest in good schools and social services. But with regard to access land, the number of people involved will be relatively small and they will be mainly farmers and landowners. They will not be able to swing a local authority decision in favour of the issue.
I agree that the amendment is modest. I cannot understand why the Government are not prepared to say that every access authority shall take such steps--possibly by the appointment of wardens. The cost may not be great. As has been said in debate, much of the work could be done by people who carry out the work enthusiastically, efficiently and effectively but not simply at the whim of the local electorate. That is a dangerous position to leave ourselves in. I hope the Minister will recognise the need to impose some obligation on the access authority.
My Lords, we have already provided powers for local authorities and said that we require them to carry out their duties in respect of information. One of their powers involves the appointment of wardens. The noble Baroness, Lady Byford, said that, like me, she does not regard wardens primarily as enforcement officers, but the amendment seems to cast them in that role.
The amendment is deceptively modest, because as well as shifting from a power to a duty, it gives the impression that the access authorities would be responsible, via wardens or otherwise, for the management and enforcement of access land. We cannot expect every piece of access land to be policed by wardens.
We have said that we will provide funding. We broadly agree with the Local Government Association's estimate of the cost, including the cost of wardening. We have given the power to local authorities and placed the access regime in their hands. I have often heard the noble Lord, Lord Dixon-Smith, argue that local authorities should be able to choose how they spend their own money. I had thought that it was the prevailing wisdom in all three main parties that we should move further in that direction, not go in the opposite direction.
The amendment would inevitably lead to ring-fencing. The right reverend Prelate the Bishop of Hereford explicitly called for that. I do not accept that argument. The amendment would be damaging to general local authority finance and would be misleading about the exact responsibilities of access authorities. We expect access authorities to take their duties seriously and we hope that they will appoint significant numbers of wardens, particularly in the honeypot areas, but also in many other places. The amendment would impose too great a burden on local authorities, constrain their action too much and give the wrong impression as to their duties.
The noble Lord, Lord Williamson, appeared not to be completely satisfied with the answer given on Report by my noble friend Lord McIntosh. My noble friend said that, under the Local Government Act, authorities already have powers to pursue civil actions. The noble Lord's objection seemed to be that nobody likes going for injunctions, but we are talking not about the person in the street--or on the farm--but about local authorities being able to go for injunctions. Those powers already exist and do not need to be reiterated.
Moreover, his amendment implies, although he sought to deny it, that local authorities would need to seek to enforce all cases of trespass arising under Part I. It is not our intention to force local authorities to take it upon themselves to pursue every relatively minor case of trespass at the behest of the landowner or anyone else.
The amendment would also give wardens or the agents of authorities the power to remove somebody from access land where they had been in breach of a restriction. That power is not conferred directly by the Bill, but only as a result of landowners giving wardens such authority. Surely that is the right balance to avoid the potential for conflict between landowners and the access authority; otherwise, wardens could try to remove people from access land even though the landowner had invited them on. That is a recipe for confusion and conflict.
I therefore hope that the noble Lord recognises that the amendment would create more problems than it resolved and that they will not pursue it. I strongly oppose Amendment No. 11, despite the noble Baroness's good intentions and despite the fact that we all agree that local authorities should appoint wardens when appropriate and make sure that they are properly serviced.
My Lords, I am sure the Minister is not surprised that I am not excited by his response. I have already acknowledged his efforts in trying to resolve the situation, but, as the right reverend Prelate the Bishop of Hereford said, the amendment would not insist that a local authority had wardens. It would merely require an authority to,
"take such steps (whether by the appointment of wardens or otherwise) as appear to it to be necessary or expedient".
The amendment does not call for ring-fencing. If the Bill is to work successfully, there should be wardens available to be put in place if they are needed. The amendment would merely give directions on that.
The Government do not appear to be worried about wardens. The Minister accepted that wardens might be necessary in some areas, but he does not think that provision should be made for them in the Bill. We simply disagree on that and I cannot do anything about it.
If some access areas run into difficulties and do not appoint wardens, who will pick up the difficulties? I assume that it will be up to the land managers, land workers and farmers to cope with something for which the Government should make provision. I do not understand the Government's argument. I am seldom frustrated by the Minister's depth of argument, but on this occasion I am. I have not suggested the provision for minor trespass. Wardens will not have just a policing role. They are helpful, supportive people who give guidance to people about many issues, including codes of conduct.
We have reached an impasse. Two days ago I expressed the hope that we would move beyond it, but I am no happier than I was before. I hope that on this occasion the Liberals will have the courage of their convictions and join us in the voting Lobby.
My Lords, before the noble Baroness sits down, we do have the courage of our convictions. They are philosophical convictions about the freedom of local government and of each local authority to take decisions for itself.
My Lords, I accept that. I trust that I was not suggesting that local authorities should not decide. I am a great stalwart of local authorities, having a brother who is a county councillor and a sister in law who was a district councillor for many years. The amendment would not take that discretion away from local authorities. I have tried to explain that to the noble Baroness. I beg leave to test the opinion of the House.
moved Amendment No. 14:
Page 12, line 44, at end insert--
("( ) Any notice erected under subsection (1) in relation to any area of access land which has, in whole or in part, been notified under section 28(1) of the Wildlife and Countryside Act 1981 (the "1981 Act") shall--
(a) state that the land has, in whole or in part, as appropriate, been so notified;
(b) indicate, in the form of a map or otherwise, the extent of the land so notified;
(c) state the nature of the offences created under section 28P(6) of the 1981 Act.").
My Lords, the offence created under Section 28P(6) of the Wildlife and Countryside Act 1981 provides a potentially powerful deterrent to the abuse of restrictions under Schedule 2 or Chapter II on access land on SSSIs. Anyone who intentionally or recklessly destroys or damages flora and fauna or intentionally or recklessly disturbs fauna on an SSSI is guilty of an offence and liable on summary conviction to a fine not exceeding £20,000 or, on conviction following indictment, to an unlimited fine.
However, for an offence to arise under Section 28P(6)(b) the person involved must know that what he destroyed, damaged or disturbed was within an SSSI. For the offence to be helpful in tackling abuses of the right of access on SSSIs--we return to this question again, I am afraid--it is essential that steps are taken to advise the public of access land which is, in whole or in part, notified as an SSSI.
Therefore, I ask the Government to consider an amendment such as this one or perhaps one of their own. Unless such notices draw attention to the existence of an SSSI, anyone who abuses his rights in relation to an SSSI and causes damage, destruction or disturbance could simply plead ignorance. I beg to move.
My Lords, under Clause 19, access authorities have powers to erect notices informing the public of the boundaries of access land and of the effect of restrictions and exclusions in force on the land. We amended Clause 19 at an earlier stage to ensure that such notices could include any other information about access land which the authority considers appropriate.
Amendment No. 14 would require access authorities, when erecting any such notice, automatically to include information on the extent of any land in the area which was designated as a site of special scientific interest, together with information about the offence created under 28P(6) of the Wildlife and Countryside Act 1981.
We believe that the Bill makes ample provision for the protection of sites which are sensitive in terms of nature conservation, allowing for closure of access or restriction of access. Where land is in need of additional protection, by-laws can be made. The effect of such closures, restrictions and by-laws is exactly the sort of information we would expect access authorities to display on notices erected under Clause 19 and, in appropriate cases, access authorities may wish to identify that certain access land falls within an SSSI and refers to the offence in Section 28P(6).
However, it is not in every case desirable to draw public attention to the status of SSSIs. There are cases, for example, where it is important to protect rare or delicate flora and fauna from the attention of thieves. In general, however, there is no objection to measures to publicise the existence of SSSIs. Indeed, new SSSIs will need to be publicised in the local press. There is already much information about them on English Nature's website.
To go further by requiring every notice erected under Clause 19 to show details of such land is simply unnecessary. A notice may be wanted just to point out a suitable means of access. It would not be desirable for all notices to contain information about everything to do with nature conservation. We, too, share the concerns raised by the noble Earl that sites of special scientific interest are fully protected. It is for that reason that we cannot accept the amendment. We believe that not only would it sometimes be unnecessary, but deeply inadvisable to display information where the access authority does not wish to draw attention in detail to the existence of the SSSI.
Access authorities can include information on a notice erected by them and may use their powers to do it under Clause 19(1)(b)(iii). In the light of that reply, I hope that the noble Earl will see fit not to press the amendment.
My Lords, I am grateful to the noble Baroness for her reply. She made a good point. I fully understand that in certain circumstances we would not necessarily wish to draw attention to SSSIs. I believe that she went on to say that the Government would expect access authorities to draw attention to them. I hope that they do, when appropriate. I do not think they need to draw attention to the reasons for designation. However, it is important that walkers understand that they are on SSSIs and, as such, special care is needed and, indeed, that special restrictions and by-laws may apply.
The noble Baroness has taken my amendment in the spirit in which it was intended. I have received a reasonably satisfactory answer. On that basis, I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 15, I shall speak also to Amendments Nos. 16, 30, 38 and 44 in this grouping. Government Amendment No. 15 responds to an amendment which was tabled by the noble Baroness, Lady Miller of Chilthorne Domer, on Report.
It provides that the new information duty on the countryside bodies should extend to cover rights and obligations with regard to nature conservation and public rights of way, insofar as such matters relate to access land.
I turn to Amendment No. 16. Clause 25 allows for directions to be made excluding or restricting access for the purpose of fire prevention by reason of any exceptional conditions of weather. We undertook on Report to look again at these provisions to see whether directions might also be made in circumstances where a high risk of fire was not directly attributable to the weather. The amendment provides that directions may also be made by reason of any exceptional change in the condition of the land. We believe that that will go a long way to address the concerns expressed on Report about the risk of fire on access land.
Government Amendment No. 30 makes minor drafting changes to a provision tabled by the noble Baroness, Lady Miller, on Report, which required local access forums to include representatives of other interests especially relevant to an area. Unfortunately, that amendment was omitted from the reprint of the Bill, but is set out in a corrigendum to it. However, this amendment replaces that paragraph to substantially the same effect.
Government Amendment No. 38 ensures that a person on access land who has with him an "engine, instrument or apparatus" used for trapping will be in breach of the restriction in paragraph 1(j) of Schedule 2. It follows a parallel amendment of the list of operations in breach of the restrictions in paragraph 1(j), so as to include trapping, in Committee when we accepted an amendment tabled by the noble Earl, Lord Peel.
Finally, Schedule 13 to the Wildlife & Countryside Act 1981 imposes an obligation on the Countryside Agency to make an annual report to the Secretary of State on the exercise of their functions arising under the National Parks & Access to the Countryside Act 1949, the Countryside Acts 1968 and 1981. Government Amendment No. 44 extends those obligations to require a report on the exercise of their functions under the Countryside & Rights of Way Bill. I beg to move.
My Lords, I am especially grateful to the Government for coming back with further provisions on the countryside code so that the public are clear on this matter. It is clear from all sides of the House that, from the point of view of farmers, landowners and users, this is one of the most crucial areas in terms of making the Bill work. I am extremely grateful that the Government have widened the extent of the countryside code. I am grateful, too, for the other amendments mentioned by the noble Baroness, which will have the effect of widening the extent of the local access forum.
My Lords, perhaps I, too, may add my support to that of my noble friend, Lady Miller of Chilthorne Domer. I welcome also Amendment No. 16, which addresses the question of fire hazards and takes account of exceptional changes in the condition of the land as well as the weather, for which some of us argued at length in Committee. We are grateful to the Government for taking that common sense view.
My Lords, perhaps I may briefly join with the noble Lord, Lord Greaves, in thanking the Minister for Amendment No. 16, which was tabled in my name on Report. I believe that it addresses the problem we raised. Perhaps I may also thank the Minister for Amendment No. 38, which includes the word, "trapping".
My Lords, I, too, take the opportunity to thank the Government. It is lovely for the Government to have a run of thanks from all sides of the House. During our days of debate, which have been long and hard, exchanges from all sides of the House have highlighted practical problems. We are particularly grateful for Amendment No. 16 which recognises the condition of the land, which is important. As regards Amendment No. 44, an earlier amendment proposed that the agency look in greater detail at the requirements within the annual report. We are therefore grateful to the Government for Amendment No. 44.
moved Amendment No. 18:
After Clause 40, insert the following new clause--
(" .--(1) Where an owner or a person with an interest in land proves that he has suffered a diminution in the value of his land or interest therein due to the right conferred by section 2(1), he shall be entitled to claim compensation in the same manner and on the same basis as provided under sections 70 to 72 of the National Parks and Access to the Countryside Act 1949 ("the 1949 Act") in relation to land over which an access order has been made under Part V of that Act.
(2) Regulations may be made as under section 70 of the 1949 Act.").
My Lords, I move this amendment standing in the name of noble friend Lord Brittan of Spennithorne and myself. Those of your Lordships who have attended the various stages of this Bill will be aware that this amendment has been tabled in substance on previous occasions by my noble friend. For reasons entirely beyond his control he is unable to be with your Lordships tonight. I have no doubt that were he able to be here the cogency of his arguments and the force of his oratory would compel immediate acceptance of the amendment by the Government. I suspect that I might have a more uphill struggle.
My starting point is the often-repeated statement made by the Minister that this amendment is unnecessary because there will be no diminution in value of any estate as a result of the Act. As many of your Lordships are aware, to that there is a simple reply. If indeed there will be no diminution in value, why not include the provision because it will never have to be activated? Noble Lords will have heard the Government's reaction on a number of occasions to that proposition and will know that, despite the Government's belief that there will be no diminution in value, nevertheless they are not prepare to include the provision in the Bill.
I suspect that the reason is very straightforward. It is very hard to conceive that if, for the first time in history, a very large number of people have access to land which was hitherto used exclusively by the owner, there would not be damage and diminution in value. There are precedents in English law for providing compensation in such circumstances. For example, one is contained in Sections 70 to 72 of the National Parks and Access to Countryside Act 1949. When an access order is made, if there is a diminution in value the landowner is entitled to compensation. That right exists despite the fact that there are other provisions in the Act to deal with other kinds of damage. So it is a distinct and self-standing provision.
I have read what the Minister said in response to the fact that this provision exists. The noble Lord said that that is very different because under the 1949 Act there is clear discrimination between landlords whose land is within a national park and landlords whose land falls outside. The distinction between the situation in the 1949 Act and that shown in the Bill is a distinction without a difference. We know that moorland, mountain areas and downland will all be mapped and classified. We know that some landowners will fall within the classification and others will fall outside. Therefore, I wholly fail to understand the distinction that the Minister makes between the situation in Sections 70 to 72 of the 1949 Act and the Bill which the noble Lord has placed before your Lordships today.
There is a second precedent and that is in the Highways Act 1980 as regards those rights of way created for the first time. If I understand the Minister's approach correctly, here it is slightly different. He says that that Act affects everybody's land and therefore nobody has rights. That seems to be a truly novel proposition. Just because the rights of a large number of people are affected, it does not mean that they do not have the right to compensation. The fact that they are all in the same boat should make no difference at all to their legal position.
What is the difference between a right of way which gives the user a clear right of passage and a right to go onto land, hitherto not allowed, which gives the person enjoying that right the right to recreation? Once again that is a distinction without the difference. As noble Lords are aware, a right of way is a clear encumbrance on property. If that is so, and if there is no difference in law between a right of way and a right of access, how can the Minister possibly argue that compensation under the European Convention on Human Rights is not payable?
Your Lordships will be aware that under Article 1, Protocol 1 there are two categories which give rise to compensation. The first is where there is a clear expropriation of the right and the second is where the government control someone's property, but do not take it away. By now noble Lords will be familiar with the fact that on 18th April this year the Minister in the other place conceded that the Bill will infringe property rights. If the Minister is to be faithful to that concession, we have here a clear case of expropriation. It is crystal clear from the jurisprudence in the European Court of Human Rights that compensation almost invariably follows.
My noble friend Lord Brittan was more generous than I have been to the Minister because he conducted his promotion of this amendment on the basis that there had not been an expropriation of a right. So to be faithful to my noble friend I shall consider the second situation, mercifully briefly, because the Minister has heard the arguments on several occasions before as have your Lordships.
The second provision of Article 1 I can summarise very briefly. It states that the provision shall not impair the right of the state to control the use of property in accordance with the general interest. In those circumstances what is the test as regards compensation? It is whether or not the public authority disproportionately interferes with the rights. I see the Minister nodding and therefore to that extent we are ad idem.
My argument here, and that of my noble friend Lord Brittan, is that the Act has the effect of making a disproportionate interference with the rights of the landowner. As the Minister is well aware, a recent case in Strasbourg gives great support to my contention. That is the case of Chassagnou where certain hunters were given the right to go on the land of property owners despite the fact that those owners were against their presence. In that case--if I may weary your Lordships with a short extract from the judgment--the Court of Human Rights said,
"In the present case the applicants do not wish to hunt on their land and object to the fact that others may come onto their land to hunt. However, although opposed to hunting on ethical grounds, they are obliged to tolerate the presence of armed men and gun dogs on their land every year. This restriction on the free exercise of the right of use undoubtedly constitutes an interference with the applicants' enjoyment of their rights as the owners of property. Accordingly, the second paragraph of Article 1 is applicable in the case".
The court went on, as the Minister may be aware, to say that what the hunters did was a clear breach of the convention. It also said that those elements of discretionary compensation which were open to the landowners in that case were insufficient to meet the requirement of compensation under the convention.
It would be difficult to find a case which was closer to the circumstances of the Bill than that. I therefore urge the Minister, at this late stage of the Bill in your Lordships' House, to accept the amendment of my noble friend Lord Brittan.
My Lords, I have not previously spoken in any of these debates and my only reason for doing so now is to respond to the claim made by my old friend, the noble Lord, Lord Brittan of Spennithorne, repeated by the noble Lord, Lord Kingsland, that,
I gave notice to the noble Lord, Lord Brittan, that I intended to reply. I am sorry that he is not in his place but he has a marvellously powerful understudy in the form of the noble Lord, Lord Kingsland.
In my view--I shall make this as brief as I can--there is no such powerful case for a general right to compensation under this Bill, and this amendment, like the previous versions, is wholly inappropriate and fails to strike a fair balance. The right to enjoy one's property, as the Minister rightly conceded, without arbitrary interference by the state is a basic civil right. It is anchored in our common law and in Article 1 of the First Protocol.
In view of the way in which Conservative noble Lords argued their case under this Bill, and because it shows what past practice is like, I should like to recall, first, that the government of the noble Baroness, Lady Thatcher, was distinctly unenthusiastic about giving full effect to the convention guarantee on the rights to property. It was that government which persuaded the European Court of Human Rights to give a narrowly restrictive interpretation to the property rights guaranteed by Article 1 of the First Protocol. I know that because I acted as counsel for one of the shipbuilding companies, Vosper, that was nationalised by the Labour government under the Aircraft and Shipbuilding Act.
In opposition, the Conservatives fought a vigorous campaign against that nationalisation and the effect of their long, protracted campaign was to render the compensation formula under the Act outmoded and unfair for some of the nationalised industries. The Conservatives promised, in opposition, that when returned to office they would reverse that unfair effect and provide full compensation to the victims. They did not keep that promise but argued successfully before the European Court, defending the effects of Labour's nationalisation statute.
But that was not all. In 1996 it was another Conservative government who refused to provide compensation for those in the business of buying cattle heads from abattoirs and processing head meat--a dreadful trade--whose business was made illegal by the ban on the sale of specified bovine material for human consumption. The Conservatives were also unsympathetic in 1997 when I moved a modest amendment that the noble Earl, Lord Peel, will remember to the Firearms (Amendment) Bill in order to provide compensation to registered firearms dealers.
I cite those examples to show that the Conservatives have been certainly no more robust, certainly no more generous in office than their Labour counterparts in upholding the principles for which the noble Lord, Lord Kingsland, spoke this evening.
Turning to the Bill, creating general rights of access across the countryside, of course, interferes with the use of the land of property owners affected by the Bill. But that is not in itself a breach of Article 1. A fair balance is required by that guarantee as by the convention as a whole. A fair balance is between the demands of the general interest and of the community and the requirements of the protection of the individual's fundamental rights.
The European Court of Human Rights made it quite clear that a particularly wide latitude is to be given to the public authorities of the state in making legislative choices about the control and use of property. When the noble Lord, Lord Kingsland, said that this was a deprivation of property under the first rule, if he will allow me to say so, that is palpable nonsense and I shall not even deal with it. Plainly it does not fall within the deprivation rule. We are talking about the control and use of land, not the seizure of land by the state.
But the discretion that we in Parliament, or the Government, enjoy is not unlimited. Individuals should not be expected to bear excessive burdens out of all proportion to the state's legitimate aims on the rights of others. One of the ways of striking a fair balance is by providing fair compensation where the particular circumstances require. But it is very rare to require compensation in cases involving control of use rather than the outright taking of property by the state. Perhaps I may give one example to which the Minister referred at a previous stage without explaining what he had in mind.
In the case of Baner v. Sweden in 1989 the European Commission on Human Rights considered a complaint that the applicant's exclusive right to fish using hand tackle had been transformed so that everybody was entitled to fish with hand tackle in the local lake. He complained that the legislation had taken away his exclusive fishing right without compensation--the kind of complaint being made by the noble Lords, Lord Brittan and Lord Kingsland.
The Commission made it clear that a right to compensation is not inherent in the control of use provision in Article 1. What matters, it explained, is the severity of the concrete economic loss caused to particular individual property owners by the legislation. On the facts of that case it found the interference to be comparatively minor and, even though the applicant received no compensation, it decided the interference was fully justified.
Perhaps I can mention another example. I acted on behalf of the meat processors affected by the 1996 BSE ban in a claim before the Commission. Again it was unsuccessful because the Commission did not accept that, overall, my clients suffered an excessive burden. It similarly threw out a claim for compensation by wholesalers and distributors of firearms.
During the Second Reading debate, the noble Lord, Lord Brittan, relied heavily--as does the noble Lord, Lord Kingsland--on the French case of Chassagnou, one of the few cases in which a successful challenge was made under the control of use provision of Article 1. As the Court went out of its way to make clear, it was a most unusual case. The applicants belonged to the anti-hunting movement and complained of the effects of the legislation that had transferred hunting rights over their land to others without their consent. They were not seeking a right to hunt but to have their land free from hunting. The European Court decided that to compel small landowners to transfer hunting rights over their land so that others could make use of them in a way which was totally incompatible with their beliefs as anti-hunting people imposed a disproportionate burden that was not justified. The Court's reasoning depended in part on the lack of provision for compensation.
That unusual case was a rare example--there have been others--where the Court regarded the absence of compensation as relevant. What those European cases and others show is that there is no general right to compensation. The answer depends on the extent of the interference, the degree of concrete economic loss and all the surrounding circumstances, including the general framework of the legislation. Of course, the framework of this legislation is careful in striking a balance between conflicting interests.
However, I want to emphasise the fact that Article 1 does not require a general right of compensation for loss and damage caused by the creation of public rights of access. Yet that is precisely what the amendments tabled by the noble Lords, Lord Brittan and Lord Kingsland, seek to provide. I accept that there may be exceptional cases arising under the Bill in which an owner or someone with an interest in land might be able to claim that his property rights have been unfairly interfered with because the impact of the Bill had been so detrimental to the individual affected.
If the Government are right, such cases of unfairness and injustice will not arise. But if they are wrong--and the noble Lord, Lord Kingsland, fairly points out that they may be--the Human Rights Act will come to the rescue in a case of real unfairness involving a breach of Article 1. The alleged victim will be able to rely on Section 3 of the Human Rights Act and ask the courts to read and give effect to this Bill in a way that is compatible with Article 1 of the First Protocol. The alleged victim will be able to rely on Section 6 of the Human Rights Act and I pay tribute to the Government for having introduced that Act. They will be able to contend that public authorities, in exercising any powers and performing any duties under the Act, must do so in a way compatible with Article 1.
That is not all: the alleged victim will be able to bring proceedings against a defaulting public authority under Section 7(1)(a) and to claim damages for breach of a duty imposed by Section 6. In other words, the Human Rights Act provides protection for the aggrieved owner where the particular circumstances require the payment of compensation. And it does so in a way which avoids creating a general right to compensation for diminution in land value or, still worse, an indemnity for the costs incurred as a result of the right of access to land of a kind advocated by the noble Lord, Lord Brittan, and the noble Viscount, Lord Bledisloe. Therefore, if the worst fears of Conservative Peers are realised, the remedies will be at hand without the need for an amendment of this kind.
Finally, there is a world of difference between a carefully tailored remedy in an exceptional case under the Human Rights Act and the sweepingly broad general right to compensation or diminution in land value sought by the amendment. I believe that the Minister was right in certifying that the Bill is compatible with the convention right to property.
My Lords, whether or not the noble Lord, Lord Lester, is right in his argument and whether or not Article 1 applies, I suggest that the Government should regard themselves as bound by the precedent created by a Labour government in 1949. I well remember it because I was in the other place at the time. Under the National Parks and Access to the Countryside Act 1949, the then government provided exactly what my noble friend Lord Kingsland is suggesting should be done under this Bill; namely, that compensation should be paid when the public have been given a right of access over land described in that Act.
I should have thought that the Government would be ashamed of treating the matter differently under this Bill from the way it was treated by their predecessors in 1949 under that Act. I hope that if the Government do not consider themselves bound by that precedent the Minister will say why not.
My Lords, I, too, seek to respond to the challenge so ably put by the noble Lord, Lord Kingsland, as to why, by reference to the European Convention on Human Rights and to precedent, compensation is required. I can deal briefly with the European Convention on Human Rights because the noble Lord, Lord Lester--and no one knows better in this area--has uncharacteristically said that the Government are right to say that what they are doing does not contravene the convention.
I hope that the noble Lord, Lord Kingsland, will forgive me for saying that he conflated two distinct rules in Article 1 of the First Protocol. The first is concerned with the expropriation of property; the taking of property. It is contained in the sentence which reads:
"No-one shall be deprived of his possession except in the public interest and subject to the conditions provided or by law and by the general principles of international law".
The European Court has interpreted that rule restrictively to relate generally to the complete extinction of property rights. That is plainly not happening on this occasion.
My Lords, the noble Lord is most generous in allowing me to intervene in what promises to be an extremely interesting and effective speech. I hope that I did not conflate the two. My argument was that a right of access is the same as a right of way; it falls into the category of a legal encumbrance and is therefore equivalent to expropriation.
That was my argument on the first arm and I went on to deal with the second arm about control. The noble Lord will perhaps disagree with my assessment of the effect of right of way on property but I hope he will accept that I did not conflate the two parts of the article.
My Lords, I heard the noble Lord--and Hansard will show whether my recollection is correct--describe what is taking place as "expropriation". As a matter of law or as a matter of common sense, I cannot see how what is being done can be described as "expropriation". Landowners continue to be able to deal with their land, to sell, to let, to farm and to turn it to advantage. Indeed, they can do things with their land which would result in the right of access disappearing. I cannot see how by any stretch of the use of language, what is happening there can be described as "expropriation". As the noble Lord said, it is in relation to expropriation cases, such as the Lithgow case which arose out of the nationalisation of the shipbuilding industry, that the question of compensation arises.
The other rule--and I accept that the noble Lord recognises the difference--is concerned with the control of the use of property. The issue there is not that of compensation but the question of fair balance. There should be a fair balance between the interests of landowner and of the community. When one looks at that, the following features of the Bill seem to me to be fundamental and compelling. First, the rights which the Bill will provide will be of great benefit to a large number of people, opening access for millions of people to the health, wellbeing and beauty of the countryside. So the public interest in the access is clear. I have sat through debates in this House, although I have not ventured previously to express opinions, and I understand that that is not in dispute.
Secondly, it is a modest right. It is principally a right for open-air recreation for walking, applying only in the wildest and most undeveloped parts of the countryside--mountains, moors and heaths--with significant restrictions particularly in Schedule 2.
Thirdly, it will constitute minimal interference with the rights of owners. It will not prevent owners from developing or using their land. Users have no general right to annoy or obstruct any lawful activity by people lawfully on the land. There is no obligation even to do anything to facilitate access.
There is a considerable distinction there regarding rights of way, on which I should like to say a word in a moment. Unless there is an agreement under Chapter 3 in respect of which compensation or payments may be made, there is no requirement on owners to facilitate access. Owners can restrict or exclude access for 28 days without prior approval or for greater lengths of time on application. The responsibility of the owner to people who are injured on the land is severely and seriously limited by Clause 13. All those factors, including the tough restriction on dogs, seem to me to justify the statement that the interference is minimal; certainly no more than is justified by giving the great public benefit to which I have referred.
I think that when one looks at the fair balance of the legitimate aim and asks whether it is proportional, in Euro jargon, to the end being achieved, the answer is clear and totally to be distinguished from the French hunting case to which the noble Lord, Lord Brittan, has referred--which says a lot more about the attitude of the French to hunting than it does about the law--where what was being done was that the hunting rights, which are themselves a property right, were being transferred against the wishes of people who were ethically and fundamentally opposed to hunting. For them to be required to see people hunting on their land when they were ethically opposed to it is very different from the situation here. No one suggests for a moment that anyone is ethically opposed to a peaceful right to ramble or to roam. So far from it being crystal clear that the European convention requires compensation, it is crystal clear that this does not contravene the convention at all. I am very comforted by the view of the noble Lord, Lord Lester, on that.
The second point the noble Lord referred to was precedent: not the precedent referred to by the noble Lord the Minister in connection with the Law of Property Act or the Dartmoor Commons Act, which do not provide compensation although rights of access are provided. It seems to me that the position under the 1949 Act, quite apart from its antiquity, is quite different because there certain landowners were being required to provide access, whereas the vast majority were not. I believe the Government have estimated that 50,000 hectares of access were secured under that Act, compared with over one million hectares under this Bill. It seems to me entirely reasonable that landowner A, who is subject to an access order, compared with landowner B, who is not, although his land is the same, should say "I am suffering a detriment". If both landowners are subject to the same rights I do not see a diminution in value and I do not see the detriment.
There is another problem with the amendment, which seeks to apply the National Parks Act 1949. It is very easy to see how neat the proposed amendment is: to turn against the Government a piece of Labour legislation which provided for compensation, but if one examines the amendment, and particularly at this stage on Third Reading, the amendment does not work. Why not?--first, because under the 1949 Act compensation is payable by the local planning authority. That made sense because they were the ones who decided whether or not access should be ordered. Does the noble Lord intend that under this amendment compensation is to be payable by local planning authorities who have nothing to do with the grant of the rights by Parliament?
Secondly, compensation is not payable until five years after an access order is made under that Act. How does that apply here? There will be no access orders. Does that mean compensation will not be payable at all if this amendment goes through, or that the Act is to be read in some different way? There are exceptions and provisions in the 1949 Act. The definition of excepted land is different. How can one lift those provisions, as is proposed, and apply them to this present Bill?
If one finally takes the example of rights of way, to me this seems a different position: not only is a right of way a property right in itself but it carries within it positive obligations. The owner of land over which there are rights of way is obliged to secure that right of way, to clear crops away to make sure that that access is available. That is not the position under this Bill.
If I may turn from those fine legal points to a last comment, it is this. If one looks at the benefit in a modern society, we all suffer detriments and disadvantages in relation to our property and livelihoods. We find that planning permission is not granted when we would like it or that it is granted next door when we would rather it were not. In a modern society we all have to accept some of those burdens. I am glad that we have not reached the stage of the United States, where somebody has to pay for everything that you had rather did not happen. The fair balance here is to accept the benefit. The Bill has secured many changes which limit and remove some of the disadvantages that people had. I would respectfully suggest that to pass this amendment is not only unnecessary, but it may send a message which is not intended. However, the message that this House continues to be concerned about a particular class of right and property rather than the rights of the population as a whole I am sure is not intended: I simply sound concern that such a message might be given. I apologise to your Lordships for taking up so much time, but I hope the noble Lord will feel able to withdraw his amendment.
My Lords, can I just raise one or two points arising from what has been said? The noble Lord, Lord Lester, made the point that concrete economic loss is the crucial test. I suspect there will be cases where it is possible to demonstrate such loss: presumably it will have to be determined by the courts as a matter of fact whether such loss exists. If it does, presumably compensation would be payable. Secondly, if we assume, as the noble Lord has just said, that it will be in the public interest for there to be access--and I am willing to accept that--and if we assume that the gain to the public is greater than the loss to the owner, surely that does not of itself make the owner's loss any smaller. Therefore it will be a matter for the courts to decide. The concrete economic loss is an easier test to apply, but of course ownership comprises many elements, including exclusivity or privacy--
My Lords, I am grateful to the noble Lord, Lord Marlesford, for giving way. Would he allow me to correct his interpretation of what I said? I did not say that the mere showing of economic loss gives rise to a right to compensation under the convention. I said that very rarely in a control-of-use case such as a planning blight that lasts for 10 years with no compensation, to take the Swedish example, the European Court will say that there should have been compensation as part of proportionality. I was seeking to explain that in almost all other cases of control of use, unless the degree of economic loss is so severe and the blight lasts for so long that it is quite exceptional as in the Swedish case of Sporrong and Lonnroth, there is no right to compensation . in respect of control of use. There is a right to compensation for the outright taking of property, and if I seemed to confuse by referring to economic loss, it was because part of it was the severity of the economic loss. However, if it is under control-of-use, in most cases one has had it.
I am grateful to the noble Lord, and no doubt the Minister will take that into account as well. However, it seems to me that there is a real question to be determined, perhaps not by this amendment or by the Government in legislation, but by the courts, as to whether or not in particular cases people are suffering loss as a result of this legislation. Whether or not the loss can be compensated is in a sense a different point.
There are various routes, which perhaps we do not have time to debate this evening--the noble Lord, Lord Lester, made reference to them--by which that loss may or may not be compensatable. But surely the Government recognise that it is probable there will be various forms of loss, whether it be loss of privacy or economic loss, such as a drop in shooting rates because grouse moors become less hospitable to grouse and more hospitable to the public. That matter must be determined. Therefore, there is a real issue here which it is well worth debating.
My Lords, I support my noble friend's amendment. I am a mere country girl among lawyers. I have found it difficult to follow the argument of the lawyers, not because their contributions have been unclear but because of its complexity. I do not intend to belittle the contributions of the lawyers.
The amendment clearly provides for compensation for diminution in the value of the land. The noble Lord, Lord Goldsmith, said that he had attended some but, sadly, not all of the debates on this matter. The Government have accepted some of our concerns along the way to try to guard against the extra costs which will fall on farmers, farm managers and owners. The truth of the matter is that a right is to be taken away. The noble Lord, Lord Goldsmith, who spoke eloquently, said that this measure would give benefits to millions of people, which we all welcome. We do not deny that. However, that will take away somebody else's enjoyment, rights or however one expresses the interest. This amendment is a modest one. I am surprised that the Government are unwilling to consider the amendment in greater depth than in the past if they do not believe that the decrease in the value of the land will be great.
I should like to wear my rural hat. I am sure that all noble Lords are aware--some are much closer to the coalface--that in this country farming is still in crisis and continues to go through difficult times. As a result, farm incomes have fallen. Some of these people are not big landowners, but the problems are the same. Those who listened to earlier debates heard the Minister accept that, while the Government would help on the question of liability, landowners or managers would still face costs because of extra liability. In an earlier debate the noble Lord, Lord Northbourne, who is not in his place at the moment, recognised that greater access to the land would result in sheep worrying, which also has an effect on the income of those who live on the land. My noble friend Lord Marlesford referred to the fact that at the moment people were free to use and enjoy their land as they wished.
The noble Lord, Lord Goldsmith, referred, perhaps unintentionally, to a special class of people. I do not regard tenant farmers, farm owners and landowners as a special class of people. However, as the Bill will have an impact upon them I regard them as a minority class. The Bill will enable millions of people to enjoy the land. We do not disagree with that. However, noble Lords who have put the legal argument should perhaps hear people like me, with much less legal ability, put the other side and say why they firmly believe that there will be a lessening in value. I support the amendment moved so ably by my noble friend.
My Lords, like the noble Baroness, it ill behoves me to be caught in the crossfire between lawyers. I attempted to counter the argument of the noble Lord, Lord Brittan, at an earlier stage. I am now quite prepared to accept that both my noble friend Lord Goldsmith and the noble Lord, Lord Lester, have done it far more effectively than me. They do not appear to have convinced the noble Baroness of the rightness of my argument last time. Nevertheless, it is clear that those expert lawyers on human rights issues recognise that argument.
The Government are absolutely committed to observing the tenets of the European Convention on Human Rights and remain confident that the provisions and the regime of the Bill are completely compatible with them, including that part which relates to restrictions on the control of one's property. At one point the noble Lord, Lord Kingsland, made an allegation about expropriation, but I believe everybody recognises that he was slightly off the mark. We are referring here to restrictions on control. In that context, under the European convention what matters is proportion, balance and discrimination or otherwise.
The case of Chassagnou which the noble Lord, Lord Kingsland, and his noble friend Lord Brittan cited, was clearly decided on the basis of disproportion and discrimination between different types of landowner. In this case there is neither disproportion nor discrimination. So far as concerns disproportion, we have constructed a regime under which, in order to balance the requirement to provide access to the land, we have reduced liability on that land. We have excluded entirely from liability whole aspects of the management of the land. We have protected the ability of the landowner to use that land in whatever way he wishes for economic or other purposes. We have also provided a flexible regime in terms of restrictions by the landowner, either directly within his own discretion or by application, on the way in which right of access is provided.
When one comes to consider balance, clearly in certain circumstances monetary compensation may arise, but where we have provided compensation in other forms we have already met the requirements of the European convention. As we have proceeded we have probably come closer to agreement as to balance. We have throughout sought balance, and we believe that the Bill as amended by your Lordships provides precisely that balance.
I turn to the point raised by the noble Lord, Lord Renton, relating to discrimination and the National Parks and Access to the Countryside Act. There was discrimination between landowners in national park areas and those outside, and between landowners within national parks to whom orders were applied and landowners in those parks to whom no orders were applied. Here there is no discrimination between one owner of a grouse moor and another, one owner of heath land and another, or one owner of down land and another; they are all treated the same in England and Wales under the Bill. Therefore, neither on the ground of disproportion nor on the ground of discrimination does the Bill offend against the central tenets of the European Convention on Human Rights.
Some noble Lords opposite and those who purport to represent landowners want to have their cake and eat it. They want balance in the sense of reduced liability, a flexible regime, compensation and, on top of that, the abolition of all liability. That is not balance. What we have in the Bill now is a balance of human rights in relation to both the landowner and the thousands of people who will have a greater human right because of their ability to enjoy the countryside.
I hope that, with the backing of distinguished lawyers, the noble Baroness, Lady Byford, the noble Lord, Lord Kingsland, and even (in his absence) the noble Lord, Lord Brittan, are now convinced that the noble Lord is wrong and the Bill is in full compliance with all the provisions of the convention. Therefore, I hope the noble Lord will not pursue his amendment.
My Lords, I thank your Lordships for a stimulating and apposite debate with respect to the amendment. Perhaps I may say to the noble Lord, Lord Goldsmith, that it was certainly not my intention to conflate or elide the two parts of Article 1 of the First Protocol. I believe I said in my opening remarks that, by regarding the position of a right of way as analogous to a right of access, a right of access became an uncompensated encumbrance on the land and therefore an expropriation.
I take the point made by the noble Lord, Lord Goldsmith, that he does not accept the analogy. But if the noble Lord is incorrect and I am correct and the analogy is accurate, then it is appropriate to submit to your Lordships that an encumbrance is an act of expropriation.
I turn to the second arm, which is the issue of control. It is always an education to listen to the noble Lord, Lord Lester, on the subject of the European Convention on Human Rights. Tonight was no exception. I take some comfort from what the noble Lord said about those circumstances--though rare, he added--when compensation might be paid. I thought I heard the Minister accept that such circumstances in particular cases might arise. If that is so, then surely, a fortiori, the Government should be providing a mechanism for such circumstances.
At earlier stages of the Bill my noble friend Lord Brittan accepted that someone seeking compensation would have to prove his case; he would have to prove real economic damage. So what would be the harm if the Minister inserted into the Bill, even at this late stage, a mechanism for making applications for compensation in those circumstances?
The noble Lord looks at me stonily. I suspect--
My Lords, the noble Lord may have misinterpreted me. I said that one could conceive of situations where compensation was part of the balancing. In this case we have provided balance in other ways. Therefore, a general provision for compensation is not appropriate.
moved Amendment No. 19:
Page 27, line 40, after ("done") insert (", or omitted to be done,").
On Question, amendment agreed to.
moved Amendment No. 20:
Page 39, line 28, leave out ("which local rights of way provide") and insert ("provided by local rights of way (and in particular by those within paragraph (a) of the definition in subsection (5))").
My Lords, I beg to move Amendment No. 20 and to speak at the same time to Amendments Nos. 21, 22, 25 and 31.
Amendment No. 20 arises from a very useful debate on Report on an amendment tabled by the noble Baroness, Lady Miller of Chilthorne Domer, aimed at maximising recreational opportunities for walkers, horse riders and cyclists away from the fumes and danger of motor vehicles. It was clear from the debate that the motive behind the amendment had considerable support in your Lordships' House and we have tabled Amendment No. 20 accordingly.
The amendment relates to Clause 60(2), which sets out matters which local authorities are required to assess in preparing their rights of way improvement plans. The matters include the opportunities which local rights of way provide for exercise and other forms of open-air recreation and for the enjoyment of each authority's area. Amendment No. 20 would place additional emphasis on the recreational opportunities provided by footpaths, cycle tracks, bridleways and restricted byways; namely, just those types of highways that serve pedestrians, horse riders, cyclists and those using horse drawn carts. The effect, when taken with Clause 60(1)(a) and (b), would be to require authorities particularly to attend to an assessment of such opportunities in their rights of way plans and their statement of what action they propose to take to improve their rights of way network. The recreational interests of non-motorised users would therefore be emphasised on the face of the Bill.
Amendments Nos. 21 and 22 relate to Clause 64, which inserts a new Section 137ZA into the Highways Act 1980. This new section enables a magistrates' court, when convicting someone of wilfully obstructing a highway under Section 137 of the 1980 Act, to order them to remove the obstruction. Failure to comply with such an order will be punishable by a fine not exceeding level 5 on the standard scale, which is currently £5,000. Amendments Nos. 21 and 22 would fulfil the commitment we gave on Report to bring forward amendments to Clause 64 in response to an amendment tabled by the noble Baroness, Lady Scott of Needham Market. The amendment in the name of the noble Baroness, Lady Scott, would have enabled a magistrates' court to order that an obstruction be removed and the costs recovered from the offender. We agree with the noble Baroness's objective, which is to get the obstruction removed as soon as possible, but as we explained at the time, we did not think that her amendment was the most appropriate way of achieving it.
We are proposing an alternative approach. Amendment No. 22 would achieve two important aims. First, it would make the offence of failing to comply with an order of the court to remove an obstruction a continuing offence. There would be fines of up to one-twentieth of level 5 on the standard scale for each day the offence was committed after a first conviction under new Section 137ZA. At present, that would be up to £250 a day. So, if, after being convicted of failing to remove an obstruction by the date specified by the court, a person still failed to take action, he could be prosecuted a second time. If convicted, he would face a fine for each day the obstruction had remained since the first conviction. If, for example, the second conviction was a month after the first, the person could face a fine of up to £7,750. After that, he could face further prosecutions and further daily fines if the obstruction was still not removed.
We believe that this would provide a powerful incentive for a convicted person to remove an obstruction. However, it may be the case that a highway authority would be prepared to remove the obstruction itself, provided that it had the power to recover its costs. Highway authorities have powers at common law to remove obstructions from their highways--either because the highway is vested in them, or because it has been decided by a court that there is an obstruction. Amendment No. 22 would provide ancillary power, where these powers were exercised by authorities, summarily to recover their costs from a person convicted under new Section 137ZA. Amendment No. 21 is consequential on Amendment No. 22.
Amendment No. 25 would assist local highway authorities generally in taking action to remove obstructions from footpaths, bridleways and cycle tracks. It relates to Section 300 of the Highways Act 1980 and Section 21(2)(b) of the Road Traffic Act 1988. Section 300 provides immunity to local authorities in relation to statutory provisions that prohibit the use of appliances or vehicles on footpaths, bridleways and footways where they are exercising particular functions, such as cleansing, maintenance and improvement. Section 21(2)(b) makes similar provision by providing for a defence in respect of the offence of driving or parking on cycle tracks.
A judgment by the House of Lords (Goodes v. East Sussex County Council) provides for a narrow interpretation of what the "maintenance" of highways comprises. Amendment No. 25 would clarify that the protection provided to highway authorities by Section 300 and Section 21(2)(b) in the carrying out of their function does extend to the functions of the prevention or removal of obstructions from footpaths, bridleways and cycle tracks, and the prevention or abatement of nuisances or other interferences with such highways.
Amendment No. 31 is consequential upon amendments made to Clause 63 in Committee, which increased the number of new sections in that clause, and upon Amendment No. 22 in so far as this empowers highway authorities to recover the costs of removing an obstruction. Amendment No. 31 would ensure that none of these provisions could come into force in the Isles of Scilly except by order made by the Secretary of State after consultation with the Council of the Isles. I beg to move.
My Lords, the House is strangely subdued following the courtroom dramas before the adjournment. Nevertheless, these are important amendments and I thank the Minister for bringing forward the two amendments in response to the concerns that we raised at earlier stages of the Bill. There was general support on all sides of the House for the concept of a more user friendly-based approach to rights of way, and an understanding that for many people the rights of way network provides an opportunity for all kinds of healthy activities and so on which are cheap and available to everyone.
The issue of the magistrates' courts is of great importance to those people who seek merely to exercise their lawful right to use a right of way which appears on the definitive map--and which has often appeared there only after a great deal of determined effort on the part of a user group to put it there. To find that not only are these routes sometimes obstructed but also that someone found guilty of placing an obstruction cannot be forced to remove it, is a great frustration.
Although the Government have chosen to take a slightly different approach from the one that we would have taken, I am pleased that the amendments have gone a long way towards addressing this particularly difficult issue.
My Lords, I, too, thank the Government for bringing forward this group of amendments. The noble Lord, Lord Northbourne, is not in his place. He raised the issue--which, as the noble Baroness, Lady Scott, said, received great support from all sides of the House--and we are grateful to the Government for their response.
moved Amendments Nos. 21 and 22:
Page 46, leave out lines 9 to 14.
Page 46, line 18, at end insert ("; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding one-twentieth of that level for each day on which the offence is so continued.
(5) Where, after a person is convicted of an offence under subsection (4) above, the highway authority for the highway concerned exercise any power to remove the cause of the obstruction, they may recover from that person the amount of any expenses reasonably incurred by them in, or in connection with, doing so.
(6) A person against whom an order is made under subsection (1) above is not liable under section 137 above in respect of the obstruction concerned--
(a) during the period fixed under that subsection or any extension under subsection (2) above, or
(b) during any period fixed under section 311(1) below by a court before whom he is convicted of an offence under subsection (4) above in respect of the order.").
On Question, amendments agreed to.
Clause 68 [Vehicular access across common land etc.]:
moved Amendment No. 23:
Page 48, line 13, at end insert--
("( ) In the case of access to a site containing a residential property or properties whose construction was completed prior to 1st January 1906 and where the number and use of the building or buildings is materially unchanged since that date, no sum of money is payable by the property owner to the owner of the access land so long as there is no evidence that the access land owner either restricted or licensed the right of access during the period from 1st January 1906 to 5th May 1993.").
Amendment No. 23 seeks to resolve what I believe to be an inequity which still faces some owners of property built before 1906 to which access is gained over common land.
We have dealt with this issue at every stage of the Bill and I need not remind the House of the problems which arose from properties which had access over common land. From 1926 onwards it was a criminal offence to drive over commons, and so prescriptive rights could not be gained from 1926 onwards. One would have thought that the owners of properties built in 1906 and earlier would not have too much to worry about. After all, the significance of the date 1906 is that it is 20 years before 1926. If owners could prove that they had rights of access for vehicles--whether wagons, carts, pony and trap or motor vehicles--from 1906 onwards, they would have no need to avail themselves of the provisions of Clause 68, the most helpful clause that the Government added at Report stage. It is correct that if they can prove that they had access from 1906 onwards, there is simply no problem. However, in many cases, that is simply impossible. A careful examination of the map does not necessarily reveal how access was gained to such houses. There is, therefore, great difficulty in gathering evidence to prove how it was acquired.
Any reasonable court could infer--not "presume"; I use the word "infer" carefully--that if someone has lived in one of these houses, some of which date only from 1906 but others go back to the time of Queen Anne, there must have been access to the house for vehicles of some kind. I think I am also right in saying that it not impossible--even if a house owner cannot demonstrate that the track was used continuously--for a court to infer that the right of way would have been transferred as the track changed.
It may seem obvious that people who own houses dating back to 1906 or earlier have nothing to worry about. But they do worry. Under the terms of the regulations there will be a requirement to serve notice on the access owner within a period that will be determined. If the house owner does not avail himself of that because he thinks that it is all right not to do so, he could find himself in court facing the access owner who is claiming that the statutory right of access has not been registered and that he will demonstrate that the house owner does not have a prescriptive right. Then, the house owner will face the most appalling complications in court.
As the noble Lord, Lord Williams, said at an earlier stage of the Bill, for most of us the instinct is not to face court if it can be avoided. The alternative is to pay a bill of 1 per cent of the value of the land or whatever the regulation suggests. We can assume that the figure will be 1 per cent, as that is the amount suggested for houses built before 1930. I have no quarrel with a figure of 1 per cent for houses built in the 1920s or thereabouts, which cannot have had a prescriptive right. As I have explained, the ability to acquire prescriptive rights ended in 1926, so the 1 per cent is perfectly reasonable. But the house owner who, because he does not have the stomach or even the means to go to court with what could be a problematical case in the absence of documentary evidence, pays the 1 per cent when he is fairly certain that a court could infer a right of access is effectively taking out a very expensive insurance policy. It is a great deal of money. It is not unreasonable to assume that some of these houses, even if they are lived in by people of relatively modest means, are highly desirable nowadays, being set in the middle of a common. The value of the house will normally be in six figures. We are talking about between £1,000 and £3,000 for an insurance policy in order to make sure that one cannot at a later date be held up for some larger figure because the time which Clause 68 helpfully allows for the acquisition of the statutory right has run out.
My amendment may or may not be appropriate. It suggests that there could be a presumption of a prescriptive easement and that, therefore, there would be no payment. I listened to the high-powered legal debate that took place earlier and I venture into these affairs as a "country boy"--my noble friend Lady Byford described herself as a "country girl". I am fairly clear that I shall be told by the Minister that it is most unwise to acquire a prescriptive easement by presumption. Nevertheless, I hope that he will recognise that a precedent has been created in having two tiers of rates--one for houses built before 1930 and one for those built after 1930. We believe that the respective rates may be 3 per cent or 1 per cent. In the case of houses built before 1906--in regard to which any reasonable court would infer some sort of access--the regulations should provide a third tier. That third tier should be something less than 1 per cent, simply to demonstrate that you have paid a sum of money; but you should not be held to ransom, which, I believe, is effectively the case because you are not sure whether you can ultimately prove your prescriptive right.
When they are drawn up, I hope that the regulations will at least have a third tier, a much lower tier, for those pre-1906 cases. I recognise that that is not what my amendment says; indeed, I acknowledge that fact. I see the glint in the Minister's eye and suspect that he may shoot me down with legal information which I shall find little to counterbalance. Nevertheless, I commend to him the idea that, having enjoyed their houses and the access to them by whatever route for so long, these 1906 householders will be faced with an astonishing bolt out of the blue when they find that they are expected to pay 1 per cent of the value of their houses to someone who has suddenly been identified as the owner of the commons. In the circumstances, a nominal payment for these access owners could be described as a "windfall". So let us not hear about human rights for the landowners. I beg to move.
My Lords, my noble friend Lady Sharp attached her name to some of the amendments moved previously by the noble Earl, Lord Selborne. However, she is unable to be here this evening because she is in the process of presenting a scientific paper. She very much wants me to say from these Benches that we are all most grateful to the noble Earl for bringing this issue to the attention of the House. Indeed, he has enjoyed much success in getting this issue resolved.
Although, as the noble Earl acknowledged, this amendment may not be legally perfect, I am sure that my noble friend would join with him in hoping that the Government will take on the idea behind his proposal. As they continue to bring forward orders relating to this issue, perhaps the Government will bear in mind the feelings expressed by this House in trying to resolve the problem. In the meantime, I thank the noble Earl for his persistence in pursuing this matter, thereby ensuring a resolution under the Bill and avoiding a delay of many years.
My Lords, I note that Amendment No. 24 has not yet been spoken to by the Minister, but, even so, I should like to reiterate basically what the noble Baroness just said. My noble friend Lord Selborne initiated this long and interesting debate. I am sure that he has done a very good turn, if I may use that phrase, not only to those directly involved but also to those involved in the matter on the government side, and others, in helping to solve this very difficult problem.
I sincerely hope that the Minister will be able to accept at least the spirit of the amendment in one way or another. In speaking to Amendment No. 24, before the Minister has moved it, I should just like to thank the noble Lord and welcome the amendment.
My Lords, perhaps I may start by speaking to Amendment No. 24, as that has been most recently mentioned. As has become clear, this amendment will provide that any regulations made under what is now Clause 68 of the Bill--vehicular access over common land--should proceed via the affirmative resolution procedures. In speaking to this amendment, I should apologise for unintentionally misleading the House during the debate on Report.
At that time, I was under the impression that we had notified the Delegated Powers and Deregulation Committee of our intention to make regulations subject to the negative procedure. I suggested then that, unless the committee advised us otherwise, we intended to proceed on that basis. However, I was unaware of the fact that the committee had not been informed of our proposals. In any case, I accept the point--indeed, it is good to have the noble Lord, Lord Ampthill, on the Woolsack at this moment, because he chaired the relevant meeting of the committee--that it is really not quite proper for government to propose something less in the expectation that the committee might demand more.
I believe that it is up to government to propose the degree of delegation that they consider to be appropriate. If the committee agrees with that, so much the better. But, if not, we then have to consider our position. I do not believe that it is right for us to propose a negative procedure in the hope that we may get away with it, if I may put it that way. That was not the intention of the department.
I have read carefully the report of the Select Committee, which tactfully and courteously rebukes me for what I said. However, I think that the result is perfectly satisfactory; namely, that we propose an affirmative resolution procedure.
I turn to Amendment No. 23. I must confess that when I first heard the noble Earl, Lord Selborne, introduce the amendment I thought he was talking about the iniquity of the Government's amendment. I then realised he was talking about inequity, which is nothing like as bad. However, I remind him that when he spoke on these matters at Report he talked of the need for fine tuning. I believe that we are at the fine-tuning stage now. I do not think that we are at issue on the most important principles.
The noble Earl legitimately asks the Government to reconsider their position on the question of free easements for properties constructed before 1st January 1906. His amendment would mean that nothing has to be paid in these cases although he referred in his speech to a nominal sum. I shall not repeat his justification for that.
One effect of the amendment would be to deem a right of access for any property built prior to 1906 without there being any evidence to support the existence of an access, let alone its use for vehicular traffic. It suggests that it is reasonable to assume that an access has been used continuously since that date without interruption, over the same land and by vehicles. This appears to us to be a very substantial assumption. The amendment would be at odds with the general laws on prescription which entail those claiming a prescriptive right to produce evidence of how that right has been acquired. I am not convinced that we should remove this requirement--that would constitute a fairly dramatic change in the laws on prescription--in these circumstances.
During consultation respondents told us that the position on Newtown Common, and other similar places, may not be typical. We have been told that elsewhere landowners have been granting easements for access over their land for many years without problems; also, in some areas, landowners are happy for property owners to drive across their land without charge in the full knowledge that no legal right is being acquired. It is unfortunate that a few landowners have been demanding high charges for granting a right of access. However, this is not necessarily the position in all areas.
Our proposals take account of older properties. As I made clear on Report, the Government accept that there is a case for a reduced compensation payment for such properties. We propose that the regulations should state that the maximum compensation payment for residential properties built before 1st December 1930 should be 1 per cent of the value of the property where there have been no material changes. This is a very substantial reduction from the amount that owners can currently expect to be asked to pay.
As I have said to the House, we accept that the problem of vehicular access over common land needs addressing. Our objective is to create a fair balance between the aspirations of property owners and the rights of landowners. We believe that our proposals for a tiered system of compensation, at rates substantially lower than would otherwise have been paid and where older properties are more favourably treated, achieve this balance.
The noble Earl, Lord Selborne, now proposes that our tiered solution should be modified from two tiers to three tiers. I repeat that as a result of Amendment No. 24 the exact levels of compensation will be set in regulations which will be debated by both Houses in due course. It is not strictly correct to suggest that the Hanning case established the principle that prescriptive rights cannot be acquired when a criminal offence is involved; the principle was already well established but it was overlooked when some houses on or adjoining commons were being built or sold.
The noble Earl, Lord Selborne, suggests that it would be a considerable imposition for a property owner to pay 1 per cent as an insurance in case a court does not at a later date uphold a claim for a prescriptive right. That is an issue that we intend to cover in the regulations. We do not want the time limits that are imposed in the regulations to work against a property owner who believes that he has a prescriptive right but needs time to prove it. That was another point that the noble Earl, Lord Selborne, made in moving the amendment.
We have suggested that property owners should have six months from the date when access is challenged or six months from Royal Assent, whichever is the later, to lodge a claim. We shall look at those time limits again. There will have to be some kind of time limit or the scheme could be open to abuse. However, I am sure that the remarks of the noble Earl, Lord Selborne, will be taken into account when framing the regulations.
The regulations are being made in response to legitimate concerns raised in this House. I have made clear at all times that the debates in the House are being considered in the framing of the regulations. We have given our ideas as to what those regulations should contain but we shall also pay serious attention to the points raised today before the regulations are finalised. I do not believe that it would be right to move from the considered tiered structure that we propose to a further structure. To move to a nil or nominal payment would result in a breach of the existing law of prescription.
My Lords, when moving the amendment I accepted that I was unlikely to get away with a nil payment proposal and that the law would look doubtfully on a presumption of a right of way.
I have accepted the principle of tiered payment. However, I ask the Government to recognise that the owners of houses built before 1906--I do not think that it is asking too much to suggest that those houses would have had vehicular access--will have some difficulty in proving that they have a right. If they are able to do so, there is no problem. But if they cannot do so, I suggest that those houses are in a different position from those built before 1930. When the regulations are framed, I hope that that point will be borne in mind. If the situation were recognised, that would be appreciated by the relatively small number of people involved. Within the tiers already agreed by the Minister, perhaps there could be a third tier involving a lower sum.
I commend that proposal to the Minister. In the meantime, I beg leave to withdraw the amendment.
moved Amendment No. 24:
Page 48, line 29, leave out from ("and") to end of line 30 and insert ("no such regulations shall be made by the Secretary of State unless a draft has been laid before, and approved by a resolution of, each").
On Question, amendment agreed to.
moved Amendment No. 25:
Page 50, line 43, at end insert--
("(3) In section 300 of that Act (right of local authorities to use vehicles and appliances on footways and bridleways), in subsection (1) after "verges," there is inserted "for preventing or removing obstructions to them or otherwise preventing or abating nuisances or other interferences with them,".
(4) In section 21(2)(b) of the Road Traffic Act 1988 (defence to charge of driving or parking on cycle track for highway authority vehicles), after "verges" there is inserted ", or the preventing or removing of obstructions to the cycle track or the preventing or abating in any other way of nuisances or other interferences with the cycle track,".").
On Question, amendment agreed to.
Clause 77 [Ramsar sites]:
My Lords, in moving the amendment, I speak also to Amendment No. 53. These amendments are both technical following changes we made in Committee and on Report.
Amendment No. 26 confirms that action under new Section 37A(2), which relates to Ramsar sites and which is inserted into the 1981 Act by Clause 77, is for English Nature and the Countryside Council for Wales. The action is notifying the owners and occupiers that a Ramsar site has been designated by the Secretary of State.
Amendment No. 53 clarifies that the relevant authority which authorises in writing a person to enter land is, for the purposes of the power of entry to ascertain whether a stop notice should be served (in Schedule 11, paragraph 21), the conservation agency. I beg to move.
My Lords, in Committee and on Report we debated a number of amendments which would have required varying degrees of agreement among affected local authorities before an AONB conservation board could be established. Ministers have explained that it is not the Government's intention to foist conservation boards on areas where their establishment is not supported. They are expected to be most suitable for some of the larger AONBs which cross a number of local authority boundaries. We expect the first moves towards the establishment of a conservation board to come from the local area.
The amendments simply support those principles by introducing a requirement that the majority of local authorities that would be affected by the establishment of a conservation board must consent when consulted by the Secretary of State or the National Assembly for Wales before an order is made establishing such a board. The requirement will also apply to the making of an order amending or revoking an establishment order. The amendments are similar in effect to Amendment No. 234A, introduced on Report by the noble Earl, Lord Peel. I beg to move.
My Lords, I am grateful to the Government for tabling the amendments. They more than satisfy the points that I tried to raise on Report. I am convinced that many local authorities within existing and potential AONBs will be greatly relieved. The amendment will create a mood of much greater co-operation among local authorities, which can only benefit the AONBs and will result in a much more positive attitude towards conservation boards for the management of those areas.
moved Amendment No. 29:
After Clause 90, insert the following new clause--
(" .--(1) The Minister (as respects England) and the National Assembly for Wales (as respects Wales) shall, in respect of every management plan which they receive, publish, if requested to do so by the authors of the plan, a response within six months setting out--
(a) the steps which the Minister or the Assembly intend to take to further the targets and aims in that management plan; and
(b) the extent to which the policies of the Minister or the Assembly may conflict with that management plan, and the steps which are to be taken to resolve that conflict.
(2) In this section--
"management plan" means a plan published in accordance with--
(a) section 82, or
(b) section 66 of the Environment Act 1995; and
"Minister" means the Secretary of State or the Minister of Agriculture, Fisheries and Food.").
My Lords, I feel that I owe your Lordships an apology, because this is the third time I have spoken to this amendment, which was tabled in slightly different form in Committee and on Report. It is therefore the third time I must remind your Lordships of my interests in the matter, as chairman of the Sussex Downs Conservation Board and as a member of the executive committee of the Association of Areas of Outstanding Natural Beauty.
I have felt it right to come back on the issue because I am surprised that the Government have not been able to accept the amendment on previous occasions. Great importance is attached to the production of management plans by local authorities within AONBs or by statutory conservation boards, where they are established. The first point that the Countryside Agency mentioned in its literature about the new conservation boards was that it and the local authorities involved would produce a management plan. It is therefore surprising that Ministers have rejected the idea that they should have to reply to management plans.
I have watered down the amendment by adding that the Minister should reply to the management plan only if requested to do so by its authors. The reply should be made within six months, which seems a reasonable period.
"were not part of the development plan system".--[Official Report, 16/11/00; col. 507.]
By implication, he went on to say that they therefore did not need a reply. With the greatest respect, the Minister has got the wrong end of the stick and failed to understand the purpose and difficulty of management plans.
The essential point is that, although there is a formal response from the Secretary of State in the planning system, the delivery mechanism occurs through the local authorities which prepared the plans in the first place. The fundamental difference between management plans from local authorities in AONBs or conservation boards and any land use plan, such as a development plan, is that authorities which prepare the management plans do not have the power to implement the plans' objectives, particularly in so far as they concern land management. A major subject of the management plans will be land management.
Therefore, in essence, in the suggestion put forward by the Government one set of authorities will prepare plans to which great importance is attached--for example, in relation to the new conservation boards--and another organisation--namely, MAFF, a government department--will not reply to the plan but will implement national policies which very often have little regard to the needs of particular areas--in these cases, designated national parks and areas of outstanding natural beauty.
I stress that point because, since first tabling this amendment, national park officers from many parts of the country have said to me, "You are absolutely right. The difficulty for us is that we prepare a management plan in accordance with the local agencies. We consult MAFF a little about it, but once it is delivered to MAFF, we often never hear any more about it. We do not know whether MAFF agrees that it should be implemented or not".
I make a further point. All national park programmes, which are in the same category, originating from management plans are in the public domain. Those programmes operate in parallel with the MAFF programmes and deal with the same people over the same area. However, the MAFF programmes are hidden under a cloak of confidentiality. Therefore, the national park authority--this will apply to the new conservation boards--has no way of knowing whether there is, for example, duplication of funding or staff resources, whether the MAFF schemes conflict with the management plan, or whether minor topping-up of support mechanisms might enable broader objectives to be achieved, such as making the best use of scarce resources. In a response from the Minister to a published management plan, those uncertainties could be resolved without the problem of breaking confidentiality.
When we discussed this matter on Report, the Minister rightly--I thank him for this--made considerable play about the introduction of Clause 85. That clause concerns the general duty of public bodies with regard to areas of outstanding natural beauty. As a reminder to your Lordships, the clause states:
"In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty".
Those are fine words and I was delighted to see them in the Bill. However, the problem is that no one has the duty to enforce those words. No monitoring takes place. There is no mechanism for ensuring that they are put into action or enforced.
That is why I say again to the Minister--I hope that he is in a receptive and wise and understanding mood--that the acceptance of the idea of a statement from the department as to what actions it is taking to fulfil obligations under this new Clause 85 of the Bill is the logical follow-up to the worthy words that I have just repeated. However, in cases relating to national parks, those words often are not used other than when something goes wrong, and that is known only retrospectively. I suggest that my amendment gives substance to those fine words. It will save money; it will save wasted time; and it will save duplication of effort. I beg to move.
My Lords, on the last occasion the Minister stated that for certain reasons the Government are reluctant to incorporate this clause into the Bill. Members of this House will be pleased that the AONBs have finally received the recognition they deserve but concerned that a two-tier system between those which have conservation boards and those which have JACBs will not be developed. Both here and in the other place Members will remain concerned about the funding for AONBs and responses to management plans. We on these Benches will follow the way in which the Government respond to issues concerning AONBs of both sorts and, in particular, those raised by the noble Lord, Lord Renton of Mount Harry. I thank the noble Lord for raising those issues.
At both earlier stages of the Bill I raised the issue of MAFF and its approach to the hill farmers' compensatory allowance. MAFF steadfastly refused to consider that one of the criteria for enhanced payments should be increased access to farms in upland areas. At that time the suggestion did not receive much support from around the House. It would have been a good mechanism for ensuring that the difficulties which hill farmers face would be met by enhanced payments under the criteria already available, if they could have been extended. MAFF has some way to go to understand the wider concerns that affect AONBs and national parks and the way that those concerns can be met, and it needs to think a little more laterally. I believe that is what the noble Lord asks--that we may discover the reasoning behind its thinking.
It would not be right to press the amendment at this stage. If the noble Lord chooses not to do so, we shall follow progress on this issue by means of Questions from these Benches.
I was able to attend an exhibition on AONBs in the Palace of Westminster, which I believe is still there. Display panels demonstrate how government, in their different manifestations--whether the Ministry of Agriculture or the Forestry Commission--are able to respond, and would propose in future to respond, to the management plans produced within AONBs. The great virtue of my noble friend's amendment is that it places upon the Government a commitment to explain how they will respond. At the moment there is a feeling that the Government do not always respond as readily as one might wish.
The exhibition to which I referred displayed how the Ministry and the Forestry Commission can tailor their response to the AONBs with agri-environmental or other measures. It is no good saying that there are blanket proposals which apply to all AONBs. It is precisely that which must be avoided. We must have specific responses from the department responsible. I believe that the amendment would do just that.
Having heard my noble friend revert to this issue for the third time, I hope that the Minister will recognise that there is much virtue in encouraging the Government to be proactive in their response.
My Lords, I too support this amendment. I was particularly interested in what the noble Baroness, Lady Miller, said about it. I fail to understand why she did not press the point further. She said all the right things, as did my noble friend. I also have taken part in various committees at the edge of government and sent in reports. Having put in a great deal of work and then submitted a report, there is nothing more frustrating than not receiving a response which is objective and in the right timescale.
Clause 90 states quite clearly that a conservation board or relevant local authority,
What is the point of that if it is not going to be read? One assumes that if there is to be no response then it will not be read. That is a waste of people's time, energy and money. It is an excellent amendment. The fact that plans are to be sent to the relevant Secretary of State is right. It is bound to help the process in every way for the conservation boards and local authorities to receive a response from government. It would be very good discipline and a regulated communication. I am sure that it can only do good in the long run for the progress of conservation boards and AONBs.
My Lords, I hope that the noble Lord will find me wise and understanding, but I regret that I am not entirely receptive to the way he has chosen, through this amendment, to address the relationship between the AONBs and the Government. I understand a number of his anxieties slightly better tonight than previously. This amendment wrongly states the relationship between government and AONBs.
I can certainly repeat the guarantees that I have given before in response to the noble Baroness, Lady Miller, and others as regards funding and not discriminating between the different types of management of AONBs. As regards the management plans, AONBs and national park management plans are essentially locally-owned documents. They are a product of all the local partners in that area. They need to include the local arms of government. That is the prime relationship with government, working with the Countryside Agency, the FRCA or MAFF. That ongoing co-operation is the important part of the relationship between the AONBs and government.
The noble Lord specifically mentioned MAFF. It will be heavily involved also in the help that it is giving through the England rural development programme and the equivalent arrangements in Wales.
The alternative way to relating to government--no doubt the noble Lord will regard it as a complementary method--would be to have a formal process of submitting a plan to the Secretary of State in a formal response rather on the basis of regional strategic plans and so forth. That suggestion implies that the ongoing co-operation at local level stops at the point where the plan is agreed. The Secretary of State is then written to and a reply awaited, which is either a formal ritual or it may be detailed.
Management plans for AONBs and national parks would contain far too much local detail for the Secretary of State, the Minister for Agriculture, to be the appropriate source for detailed comments. In practice, the Secretary of State will ask his local agents who are already engaged in, and are party to, the preparation and implementation of the plan. To divert them to provide the national response is a waste of time and effort.
Clearly, it is important that the centre has copies of the plan and can monitor the progress in each of the AONBs and intervene should something go wrong or if there is something which should be particularly encouraged or commented on. The idea of a formal response seems to me to cut across the co-operative response at local level.
I am not sure that I can find an equivalent circumstance in which the Secretary of State is required to comment on local plans in a formal sense. The noble Lord referred to the development process. It is even optional in the development plan system for the Secretary of State to comment. It is usual for the Secretary of State to respond because he may consider that there is a need to do so in individual cases. But it is actually optional, even at that level.
The community strategies, for example, which are in other local plans and are introduced under the local government Acts 2000 are perhaps more analogous. Under that legislation there is no provision for the Secretary of State to comment because they are locally-owned documents like management plans. The Secretary of State or the Minister will, of course, be able to make specific comments if he feels it appropriate to do so. But we would not wish to write that process into legislation as a requirement.
I was perhaps a bit slow last time and must choose my words carefully now. But the scales slightly fell from my eyes when the noble Lord, and to some extent the noble Baroness, Lady Miller, focused on the contribution of MAFF. I am sure my colleagues in MAFF are doing their best to ensure a positive and constructive engagement with that department. If the problem involves the relationship with a specific government department, I can undertake to take that back and try to ensure that such difficulties as those described by the noble Lord are addressed by Ministers and officials within MAFF. I am sure that MAFF will be prepared to address that issue sympathetically and on a partnership basis.
The issue of the relationship with MAFF is not directly related to the kind of process that is to be set down in the Bill. Various forums are raising those matters more formally with MAFF; for example, the National Rural Development Forum takes place next week. However, I undertake to the noble Lord that I shall raise it with the department myself. A positive and constructive engagement with MAFF and other government agencies is an important part of making these plans work and following them through. I would prefer that to be developed than to have the sort of ritual iteration that would be required by the amendment. However, I hope that what I have said meets the noble Lord's objectives.
My Lords, I appreciate that the Minister is trying to be positive and constructive about this matter. I used those words "positive and constructive engagement" when I was a Minister. I hope that they sometimes forged results.
Noble Lords will be pleased to hear that I do not propose to go over the arguments again. The main problem, as the Minister said, is that this is a local product. No one locally has the funds and resources to deliver it. It goes back almost always to MAFF nationally. MAFF refers it to its regions; the regions say, "We do not have the resources. This is a problem for MAFF nationally".
However, I shall take up the Minister's suggestion. I should like to write to him and go into rather more detail on these genuine problems which exist in the present system and which we do not want to see continuing in relation to areas of outstanding natural beauty or future conservation boards. If in later years I find that the management plans are not being dealt with, I shall certainly aim to table a Question in that regard in your Lordships' House. That said, I thank my noble friend Lord Glentoran, the noble Baroness, Lady Miller, and my noble friend Lord Selborne for their support. Given the late hour, I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 32, I shall speak also to Amendments Nos. 49, 51 and 52.
Your Lordships will be aware that these amendments arise from a debate initiated by my noble friend Lord Williams of Elvel on the vexed question of how to tackle the increasing unlawful use of motor vehicles on footpaths and bridleways. Noble Lords throughout the Chamber expressed concern that we should address the problems identified by my noble friend in his previous amendments and in the debates that he initiated.
Schedule 7 to the Bill makes various changes to Section 34 of the Road Traffic Act, under which it is an offence to drive on a footpath, a bridleway or a restricted byway. The new Section 32(2) creates a presumption that, where a way is shown on a definitive map as a footpath, bridleway or restricted byway, it should be treated as such unless evidence is produced to the contrary.
During the Report stage, we agreed to a further government amendment increasing the burden of proof on the defence to show evidence of vehicular rights on the balance of probabilities, rather than the lesser burden of proof which had previously existed. The agreement of the House was conditional on my undertaking to see whether I could go further to meet the concerns expressed by my noble friend Lord Williams of Elvel. I believe that we have done so but in a way different from his amendments. The problem about definitive maps is that they are not definitive because they contain some serious errors. For example, on the latest definitive map a section of the A40 in Herefordshire is marked as a footpath. Therefore, there are problems with using it as prima facie evidence.
Nevertheless, we have thought further. Amendment No. 32 is a paving amendment to Amendment No. 52, which would make it a offence in certain circumstances to drive on a way shown as a footpath, bridleway or restricted byway whether or not that highway carried full public vehicular rights of way. It would do so by inserting a new Section 34A into the Road Traffic Act. That would require a defendant, in addition to proving the existence of full vehicular rights of way, to show that it was reasonably necessary to drive the vehicle to gain access to land in which he has an interest or to which he is a visitor but not a trespasser, or that it was reasonably necessary for him to do so in the conduct of a his business; for example, travelling in his car as a garage mechanic to mend a vehicle.
That would mean that people who were travelling for access to premises would be distinguished from motorcyclists tearing across the countryside, or 4x4 drivers going as far as they could along a footpath for a picnic. We believe that we must protect the position of people seeking access to premises, not only owners but others with lawful access. We also recognise that this is an extremely complex area and we have all tried tackling the problem in different ways.
We are not entirely sure that we have fully tackled it, which is why we have retained an ability to cover other categories of people who might reasonably need to drive on the way which is shown as a footpath, bridleway or restricted byway. That is why we have included in Amendment No. 52 the provision for the Secretary of State to make regulations prescribing other circumstances in which the defence, under subsection (2), would be available to such a person. Amendments would also be made to Section 195 of the 1988 Act to provide that regulations were to be made by statutory instrument and would be subject to the affirmative procedure.
Amendment No. 49 is consequential on Amendment No. 52. I beg to move.
My Lords, as my noble friend pointed out, I have pursued the issue during our debates in this House. I am grateful to him and to those who have worked behind the scenes for ensuring that we have reached a satisfactory solution. I believe that we have. As my noble friend said, it is not entirely perfect, but nothing is in this world. We must go along with the proposal and therefore I shall not move my Amendments Nos. 48 and 50.
I have only one brief question to ask my noble friend, who I believe has done very well in respect of this matter. Will he indicate when the provisions will commence, because the amendment indicates a later date? Having asked that niggling question, I am grateful to my noble friend, who has been most helpful.
My Lords, as my name is also on Amendments Nos. 48 and 50, I should like to join with the noble Lord, Lord Williams of Elvel, in thanking the Government for these amendments. I would recall that we had one amendment already included in the Bill. That was already an improvement, with the words "unless the contrary is proved" as a correction to the Road Traffic Act 1988. That was a step forward. Some of us wanted to go a little further in the direction of making the definitive map conclusive. However, I think the Government have responded very satisfactorily indeed to the request that we put forward, and I am happy to welcome these amendments.
My Lords, one of the fascinating parts of our debates during this process has been to see how, from the rather controversial nature of Part I, we moved into quite a large degree of consensus on certain parts of Part II. The issue of vehicular use of rights of way has worried many of your Lordships. There were two distinct, but related, issues. One is the present issue, the so-called Grimsell Lane issue--and I know that the local authority officers from Derbyshire who first raised it are rather thrilled at the notoriety that Grimsell Lane has now achieved as a result of their campaign. The other issue related to the way in which vehicular rights come on to the definitive map, because people can prove that in times gone by the way was used by horse and cart. I am rather sorry that the noble Baroness, Lady Byford, has not brought back her amendment on the subject, because there is more to do here and I suspect that long after this Bill has been passed we shall continue to debate the subject of vehicles on public rights of way.
Returning to the present issue, I am very pleased at the way in which the House has worked together and the Minister has pulled strings, almost within the last few hours, to find a way forward with which we can all agree. From these Benches we would like to extend our full support to him, together with our thanks to the noble Lord, Lord Williams of Elvel, for going a long way to resolve a rather thorny issue, particularly for the people of Grimsell Lane in Derbyshire.
My Lords, I rise very briefly to echo the words of other noble Lords. The noble Baroness, Lady Scott, asked why I had not brought back my amendment. Actually, I thought I would not make any further advance on that. All of us in the Chamber realise that there is a real ground issue needing to be addressed and I hope that at some future stage the Government will look at this thorny issue. I too should like to add my thanks to the noble Lords, Lord Williams of Elvel and Lord Williamson of Horton. We are grateful to the noble Lord the Minister for coming back with an amendment which means that the amendments submitted by those noble Lords will not be moved. It reflects the House at its best when there is a problem and we can come together to overcome it. We are happy to support this amendment.
My Lords, I too give my thanks particularly to my noble friend Lord Williams, who was the driving force behind this. Several of your Lordships, including the noble Baroness, Lady Byford, have had long discussions on this matter over the past few weeks. I am told that we finally managed to submit this amendment at 4.55 yesterday, with a reasonable degree of consensus behind it. I am very thankful to everybody concerned in that process.
To answer my noble friend's question, Amendment No. 32 would require new changes to Schedule 7, perhaps to be brought in by commencement orders to be made by the Secretary of State. That means we would need a scrutiny process for the regulations. Clearly, I could not possibly pre-empt Parliament's consideration of those regulations, but our intention would be to make them as soon as possible. The remainder of Schedule 7 comes into effect two months after enactment of the Bill, as provided for in Clause 103.
My Lords, this small amendment addresses what I believe to be an oversight. The Government kindly tabled an amendment to deal with a concern which we raised initially about the registration of town and village greens. The point of the amendment was to prevent a loophole which would stop town and village greens being registered, thereby allowing them to be regarded in some cases as development land. This amendment simply seeks to ensure that the provisions of this clause and many others can be implemented within two months of the Act coming into force.
We understand from the Minister's reply that there is good reason why paragraph (b) of subsection (1A) and subsection (1B) cannot come into effect within two months. However, we believe that subsection (1A), which relates to the use of that land, can begin within two months. I ask the Government to accept our amendment. I beg to move.
My Lords, this amendment provides that the revised definitions of town and village greens should come into effect two months after the date of Royal Assent. As far as concerns the definitions, we are happy to accept the amendment. I was asked by the noble Baroness during the previous stage when the Government expected to lay the subsequent regulations. We cannot give a cast iron guarantee as to that, but we expect to do that as soon as we can. However, I am very happy to accept the amendment and the definitions within it.
moved Amendment No. 35:
Page 73, line 21, at end insert--
("9A. Land within 20 metres of a building which is used for housing livestock, not being a temporary or moveable structure.").
On Question, amendment agreed to.
[Amendment No. 36 not moved.]
moved Amendment No. 37:
Page 74, line 17, at end insert--
("14A. The land which is excepted land by virtue of paragraph 9A does not include--
(a) any means of access, as defined by section 34, or
(b) any way leading to such a means of access, if the means of access is necessary for giving the public reasonable access to access land.").
On Question, amendment agreed to.
Schedule 2 [Restrictions to be observed by persons exercising right of access]:
moved Amendment No. 38:
Page 74, line 40, after ("fishing,") insert ("trapping,").
On Question, amendment agreed to.
My Lords, in moving Amendment No. 39 I should like to speak also to Amendments Nos. 40 to 42. The amendments provide that in the vicinity of livestock and on all access land between the 1st March and 31st July dogs should be kept on fixed length leads of no more than 2 metres. I have already expressed reservations as to whether this provision is necessary, particularly in the light of the extensive provisions that we have made for the restriction of dogs more generally. Nevertheless, I understand the concerns on this issue expressed on all sides of the House and in the countryside. In the light of the commitment that I gave at the previous stage, I believe that it is sensible to make this matter clear on the face of the Bill. I beg to move.
My Lords, I rise to speak to the amendment in my name in this group. I tabled this amendment at Report stage in a gesture of compromise so that the Government could demonstrate the real strides taken by the Kennel Club and other organisations to promote proper and responsible dog ownership. My noble friend in response felt that the Bill inherently provided what I sought. However, when I looked at it subsequently I believed that that presumption was not valid. In any case, the important point is what is in a Bill rather than what may be thought to be in it. However, I shall not press the matter because I think eventually there will be litigation. I regret that there will be irritation among responsible dog owners, who probably would prefer the provision which is in the royal parks legislation, that a dog shall be on a lead or under control. It is not a good idea for government to meddle in issues like the length of dog leads.
As a dog owner, I do not like extended dog leads. Some people think they are useful for training. I have always managed to train dogs without using an extended lead. But there are some people for whom the extended lead is viable. Recently, I saw a badly disabled lady I have known for a long time. She has one little dog--her companion--which is a priceless asset to her. She goes out. She cannot walk far. But her little dog gets a fair amount of exercise on an extended lead. People like that will not be able to enjoy giving their dogs exercise in the fresh air.
I regret this provision. It will be harsh. It may not affect many people. It is not in the best interests of the Government to be seen to be adversely affecting disabled people's quality of life. That aspect of the amendments is quite unsatisfactory.
My Lords, we welcome further control on dogs because it has been one of the worries raised by farmers. The issue was outwith the scope of the Bill, but, as discussions went on, it became clear that dog licences and fitting dogs with microchips are something that the Government may want to consider at some point in their legislative programme. The provision would have answered many more of the concerns raised by noble Lords in our debates on the subject of dogs. The Bill is now considerably strengthened in this area. I am grateful for that.
My Lords, I rise briefly to thank the Government for tabling these amendments. As noble Lords will know, this has been one of the most difficult areas in the Bill. I hear what the noble Lord, Lord Hardy, says. It is always a difficult matter, but, wherever a rule is made, someone will always be slightly disadvantaged. Perhaps they will be on land that will overcome the problem. I have tabled an amendment that may overcome the problem that the noble Lord has raised with these particular amendments.
My Lords, perhaps I may comment on the amendment of my noble friend Lord Hardy. As regards the issue of short against extended leads, it is clear from his comments that I cannot please everyone.
We are talking about a new right which will not restrict anyone who has been taking his dog on walks with an extended lead in areas where he has always done so. It meets a concern that some noble Lords had about the ability of a dog on an extended lead to disturb wildlife when quite a distance away from its owner, even though, strictly speaking, it is on the end of a lead. That is why we put in that short leads provision.
My noble friend's Amendment No. 40 would allow people to take dogs on to access land without a lead during the restricted period with the permission of the owner or occupier of the land. I understand what my noble friend seeks to do. I have tried to explain why that is not necessary. If one allows a dog off its lead during the restricted period it is clearly a breach of the restriction and could result in the loss of the right of access. Therefore, the landowner could ask the person to leave the land. But where a landowner is content for a person to walk with a dog without a lead during that period, then the landowner will clearly by definition not be requesting that person to leave. Therefore, the walker and dog will be free to continue their walk, just as they do at present because they have the landowner's permission or connivance in doing so.
I do not think it is necessary to spell that out in the provisions of the Bill because, either formally or informally, the Bill already enables landowners to permit walkers to allow their dogs off the lead. Therefore, I do not think the amendment is necessary.
moved Amendments Nos. 41 and 42:
Page 75, line 26, after ("a") insert ("short").
Page 75, line 27, at end insert--
("5A. In paragraphs 4 and 5, "short lead" means a lead of fixed length and of not more than two metres.").
On Question, amendments agreed to.
moved Amendment No. 43:
Page 75, line 27, at end insert--
(" .--(1) Save as hereinafter provided a person is not entitled to enter on access land at night with a dog or to be on access land at night with a dog unless prevented from leaving it by unforeseen circumstances.
(2) Sub-paragraph (1) above does not apply--
(a) where the land has been designated by the appropriate countryside body as suitable for access at night with dogs; and any such designation may impose such conditions or limitations as appear to be appropriate; or
(b) to dogs which are on the land for some necessary or useful purposes, such as search or rescue.
(3) In this paragraph, "night" means the period from one hour after sunset to one hour before sunrise.").
My Lords, with this amendment we return to the issue of dogs being exercised on access land at night. Access land is different from footpaths. As noble Lords are aware, the right of people to take their dog for a walk on a right of way would not be altered by my amendment. We have all been subject to lobbying. The issue that has concerned the widest range of interests is that of uncontrolled dogs on open land. I do not look at the noble Lord, Lord Hardy of Wath, when I say that, because his dogs are under control.
I have previously spoken about the safety of dogs and the safety of people who own those dogs. I have spoken also of the safety of wildlife and the problem of dogs that are out of control. If a dog runs free at night, how will it be retrieved? How will people know where their dog is? It is dark on the land. The grass is sometimes fairly long or the land is covered in bracken and heather. Unless the dog is white, it may well be invisible, as my dog often is. The owners of lost dogs tend to become upset. They do things which otherwise they would wisely not do and they may then put themselves at risk. That may lead to the rescue services being involved to get both dog and owner back to safety.
A large part of the Bill is devoted to the protection of wildlife. At an earlier stage no less a speaker than the noble Baroness, Lady Miller, stated:
"Constant disturbance by dogs is more a killer of wildlife than being hunted".--[Official Report, 26/6/00; col. 643.]
I would add that disturbance at night is more of a killer than disturbance during the day. There is a great difference between the two.
The groups which have lobbied me include English Nature, the RSPB, the Lakes national park authority, the Moorland Association, the CLA, the NFU, the Countryside Alliance and ordinary farmers who have to cope. In earlier debates the noble Lord, Lord Northbourne, raised the whole issue of sheep. Individual people are worried as well.
My amendment attempts to reflect the concerns expressed during our previous debates. It accepts that unforeseen circumstances may lead to a dog being held on access land after the hours suggested in the amendment. That is common sense. Sub-paragraph (2)(a) includes land which could be,
"designated by the appropriate countryside body as suitable for access at night with dogs; and any such designation may impose such conditions or limitations as appear to be appropriate".
That may solve the problem raised by the noble Lord, Lord Hardy. It may also satisfy the noble Lord, Lord Whitty, who said that on a dark night at four o'clock he would not be able to take his dog out for a walk. I hope that the Minister does not dismiss the amendment out of hand because in it I have tried to address the real problems mentioned by noble Lords during our debates.
Sub-paragraph (2)(b) recognises that some dogs may go on to land for,
"some necessary or useful purposes, such as search or rescue".
Again, the amendment deals with a period from one hour after sunset to one hour before sunrise. The hour is late, so I shall not go into greater detail on this matter, except to recommend the amendment to the House. I beg to move.
My Lords, I rise briefly to support my noble friend in this amendment. I acknowledge the fact that we have lost the argument on night-time access, but that does not preclude us from considering dogs as a separate issue.
I remember well that, before we embarked on the Bill in this House, I organised a meeting for certain interest groups. Among those who attended was the Moorland Gamekeepers Association, represented by its chairman,Lindsey Waddell. I recall him saying that one of his greatest concerns would be night-time access with dogs. It would open up a whole range of new difficulties for farmers and gamekeepers; namely, those who are responsible for a great deal of the land covered by access agreements. It is clear that we shall see difficulties with poaching and disturbance of livestock, problems which have been identified on innumerable occasions by noble Lords during the course of the Bill.
This amendment is well constructed because, as my noble friend pointed out, although it deals with all the permutations, it does allow for the control of dogs in areas where they could create the greatest difficulties. I hope that the Minister will look carefully at this proposal. If he does not, this will become yet another burden to be imposed on those who are responsible for managing the land. Quite frankly, they will not be in a position to impose the controls they deserve in order properly to carry out their duties.
My Lords, I, too, rise to support my noble friend. Noble Lords will have heard me going on about problems with dogs at night; indeed, they may have heard enough already. One of my main worries concerns the question of disturbance of wildlife.
A problem which the Minister keeps drawing to our attention is that we are passing legislation that will cover a vast array of different forms of countryside--mountain, moorland, heath, down and commons. One element of the amendment that strongly recommends itself to me is the fact that it allows the access authorities to permit people to exercise their dogs at night on commons. On Report, the Minister mentioned how difficult it would be to exercise one's dog within a 20-metre curtilage of one's house. However, most people who exercise their dogs at night do so along roads or other rights of way. Those options would still be in place for them. Commons would also be included and, indeed, any other areas that someone wanted to designate. I wish to support the amendment.
My Lords, I should like to add a word or two of support for the amendment moved by my noble friend. Time and again we have won the argument and lost the vote on the issue of access at night. However, when it comes to access at night with dogs running loose, it is certainly time for the Government to think again and to appreciate that this amendment is both simple and reasonable.
The important point to make here concerns habitats and the wildlife occupying them. Perhaps one can control a dog kept on a short lead, but if it is roaming wild, heavenknows what will happen to ground nesting birds and wildfowl, in particular those on flight ponds who will be damaged if they are disturbed at night. The amendment is reasonable and offers opportunities for sheepdogs to be out, if that is required, as well as rescue dogs. It seeks only to exclude dogs running wild and causing a great deal of harm to wildlife. Why the Minister prefers to put human beings before wildlife in terms of night access, I simply cannot understand. We should think much more seriously of the damage that will be done to wildlife. For that reason, we should all support this amendment.
My Lords, I support the amendment. One of the Government's arguments in various parts of the Bill has been that we already have access in much of the countryside and that does not seem to be causing any trouble; and that if we have more access, it will not cause any more trouble.
But we do have trouble with dogs. They cause an enormous amount of problems in the countryside already--chasing livestock and the wildlife to which my noble friends have referred. Dogs are a real problem for farmers--and dogs get out of control very much quicker at night. As soon as they are out of sight--which is rather quicker in the dark--they go through a fence or go 50 yards and get among sheep. They already do far too much damage to sheep. Livestock farmers will tell you that the most damage of all is caused by dogs getting among sheep. Dogs are much more difficult to control at night. They get into gamebirds, they get into sheep, they get into anything.
By allowing this, we would not be creating a new problem but encouraging and aggravating a current problem and allowing it to get worse. Even though it is the eleventh-hour in these proceedings, it would be very helpful if the Government were to recognise the extent of this problem. The Ministry of Agriculture has recognised the problem and has referred to it frequently. This is something we could do to prevent an existing problem getting worse.
My Lords, we need to have a sense of proportion about this. At times, slightly against my better judgment, I have conceded in good faith a large number of restrictions on the use of dogs. We have talked about a complete ban of dogs on grouse moors; we have said that dogs should be on a lead in the vicinity of livestock, and we have just passed an amendment which provides that it should be a short lead. So we have covered the issue of dogs worrying sheep, to which the noble Lord referred. We have also said that on all access land dogs should be on two-metre short leads between March and July. In those circumstances, those restrictions apply at night as they do during the day. We do not need another blanket ban which is likely to alienate a large number of dog owners.
I know that the noble Baroness thinks that she has built into the amendment some flexibility--which helps my case because her noble friend Lord Roberts was going to prevent me from going out of my back gate without telephoning the access authority--but the noble Baroness now seeks to prevent me going out of my back gate with my dog without obtaining extra certification from the Countryside Agency.
When one is dealing with common land, downland and many other areas which are close to habitations where people own dogs, it would be a fairly absurd restriction if at half-past four on Saturday people could not take their dog out for a walk. That is the implication of the amendment, albeit a small amount of flexibility is built into it. It is the kind of flexibility to which noble Lords opposite have objected in all other terms. They said that the Countryside Agency could not operate such a scheme when we were talking about flexibility in restriction regimes.
We have recognised the serious problems that there are with dogs in certain areas and at certain times. This amendment goes too far. I hope that the noble Baroness will not pursue it.
My Lords, I knew I was winning the argument when the noble Lord, Lord Whitty, started knocking the Dispatch Box. He may be slightly irritated by not being able to win the argument, but I have to say to him--and I have enjoyed debating these issues with him throughout--that there are many people out there who will not find it a joke that dogs will be running loose and wild at night. I am pleased that the Government Chief Whip is in his place. He was originally a farmer by profession and will well understand some of the problems which occur on land.
I am sorry that the Minister does not take this issue more seriously. It is a real problem. If the noble Lord, Lord Northbourne, were here, he would be jumping to his feet and joining the debate. I am very unhappy that the Government do not take this problem seriously. I beg leave to test the opinion of the House.
moved Amendment No. 44:
Page 78, line 26, at end insert--
:TITLE3:("Wildlife and Countryside Act 1981 (c. 69)
6. In paragraph 13(1) of Schedule 13 to the Wildlife and Countryside Act 1981 (Countryside Agency's annual report on the discharge of their functions) after "1968 Act" there is inserted ", the Countryside and Rights of Way Act 2000".").
My Lords, in moving this amendment, I shall speak also to Amendments Nos. 46 and 47. These are all technical amendments relating to Schedule 6, which amends Section 29 of the Highways Act 1980 to require councils, when making public path creation agreements and public path orders, to have due regard to, among other things, the desirability of conserving flora, fauna and geological and physiographical features. The new duty is expressed so as not to apply in cases where similar duties are imposed by specific provisions in various other named enactments. These amendments would delete the exceptions.
The new duties imposed on public bodies by Clauses 85 and 97 to have regard to conserving and enhancing the natural beauty of AONBs and the Broads in the exercise of their functions would have required that the list in Section 29(2) were added to or removed. Indeed, if in future any new such duties were imposed, the subsection would have to be further amended. We believe that removal is the better approach. It does not limit the operation of Section 29, but rather, where the duties are concurrent, it will serve to give added emphasis to the matters that they currently seek to protect. I beg to move.
moved Amendments Nos. 46 and 47:
Page 87, line 21, leave out from beginning to ("the").
Page 87, line 23, leave out from ("features") to end of line 33.
On Question, amendments agreed to.
moved Amendment No. 49:
Page 117, line 32, after ("unless") insert ("(subject to section 34A of this Act)").
On Question, amendment agreed to.
[Amendment No. 50 not moved.]
moved Amendments Nos. 51 and 52:
Page 117, line 50, at end insert--
("(5A) Subsection (2) above and section 34A of this Act do not extend to Scotland.").
Page 118, line 11, at end insert--
("5A. After that section there is inserted--
"Exceptions to presumption in section 34(2).
34A.--(1) Where a person is charged with an offence under section 34 of this Act in respect of the driving of any vehicle, it is open to that person to prove under subsection (2) of that section that a way shown in a definitive map and statement as a footpath, bridleway or restricted byway is not a way of the kind shown only--
(a) if he proves to the satisfaction of the court--
(i) that he was a person interested in any land and that the driving of the vehicle by him was reasonably necessary to obtain access to the land,
(ii) that the driving of the vehicle by him was reasonably necessary to obtain access to any land, and was for the purpose of obtaining access to the land as a lawful visitor, or
(iii) that the driving of the vehicle by him was reasonably necessary for the purposes of any business, trade or profession; or
(b) in such circumstances as may be prescribed by regulations made by the Secretary of State (and paragraph (a) above is without prejudice to this paragraph).
(2) In subsection (1) above--
"interest", in relation to land, includes any estate in land and any right over land, whether the right is exercisable by virtue of the ownership of an estate or interest in land or by virtue of a licence or agreement, and in particular includes rights of common and sporting rights, and the reference to a person interested in land shall be construed accordingly;
"lawful visitor", in relation to land, includes any person who enters the land for any purpose in the exercise of a right conferred by law."
5B. In section 195 of that Act--
(a) in subsection (3), after "that section)" there is inserted "34A", and
(b) in subsection (4), after "14" there is inserted ", 34A".").
On Question, amendments agreed to.
Schedule 11 [Transitional provisions and savings relating to sites of special scientific interest]:
moved Amendment No. 53:
Page 145, line 43, at end insert--
("and as if, in subsection (2)(a), after "paragraphs (a) to (k)" there were inserted "and paragraph (n)"").
On Question, amendment agreed to.
Schedule 12 [Amendments relating to Part I of Wildlife and Countryside Act 1981]:
My Lords, we are nearly at the end of this marathon.
The purpose of these amendments is to remove imprisonment, which the Bill, as drafted, adds through Schedule 12 to the penalties provided for by the Wildlife and Countryside Act 1981 in respect of a large number of offences listed in Sections 1 to 14 and Section 17 of that Act. These offences range from the unauthorised uprooting of any wild plant to the killing of scheduled birds or the taking of their eggs.
The Bill also provides for increases in the fines for these offences from the £200 to £1,000 provided for in the 1981 Act to level 5 on the standard scale of fines which is at present £5,000. My amendment leaves in the Bill this proposed increase in fines, which I am sure we all fully support.
My amendments are based upon, but move forward from, the amendment moved last week by my noble friend Lord Buxton of Alsa. Unfortunately my noble friend cannot be with us today, although obviously he fully supports the amendments to which he has put his name.
It therefore falls to me to do my inadequate best to put forward the arguments. I say "inadequate" because, despite the fact that I have been an active member of the conservation movement in this country for over 20 years and should perhaps once again declare an interest as President of the Suffolk Preservation Society, Vice-President of the CPRE and a Suffolk farmer who has always tried to manage his land in such a way as to enhance its scenic beauty and care for the diversity of its wildlife, I cannot begin to compare with the distinction of my noble friend Lord Buxton as a scholar and conservationist.
The noble Lord, Lord Barber of Tewkesbury, who for reasons of health cannot be with us today, has asked me to say how strongly he supports these amendments. The noble Lord has perhaps uniquely, filled all the offices of the RSPB--council member, committee chairman, chairman of council, vice-president and president. Not even the noble Baroness, Lady Young of Old Scone, can compete with that.
The amendment avoids some of the problems of unequal treatment of different people for the same offence. That was an objection the Minister understandably made to the original argument of the noble Lord, Lord Buxton. The debate last week focused on the killing of raptors. That is a matter of great controversy among the experts of the bird world. Many respected authorities argue that the present schedule of protected birds has over the past 10 years become counter-productive to the objectives of nature conservation. I do not feel qualified to enter into that controversy, except to say that I agree with the noble Baroness, Lady Miller of Chilthorne Domer, that the right course is to examine the number of raptors to see whether they should continue to be included on the schedule--a view which was echoed by the Minister in his summing up last week.
The noble Lord, Lord Buxton, told me yesterday that he has discussed the balance of the Bill and the provisions for enforcement with Max Nicholson, who will be well known to many of your Lordships as a figure of world renown in the conservation movement. Aged 96, he is, I am told, as bright as a button and I am sure would be well qualified to be a Member of your Lordships' House. He is worried that the preoccupation with the role of enforcers rather than a commitment to conservation is now risking dividing the wildlife conservation movement.
While these controversies are unresolved, it would seem an inappropriate moment to introduce a prison sentence for a series of offences which are wholly unsuitable for such a sentence. The changes proposed provide for a prison sentence under Schedule 12 and add to the penalties provided for by the Wildlife and Countryside Act 1981. I take one example. Under Section 14 of that Act, items which normally would be punishable by a fine are to be punishable on summary conviction by six months' imprisonment and on indictment to two years' imprisonment. So what are these items? Section 14(1) of the Act states:
"Subject to the provisions of this Part, if any person releases or allows to escape into the wild any animal which--
(a) is of a kind which is not ordinarily resident in and not a regular visitor to Great Britain in a wild state; or
(b) is included in Part I of Schedule 9, he shall be guilty of an offence".
That offence can result potentially in two years' imprisonment. So what are these creatures which are so dangerous, referred to in Part I of Schedule 9 to the Act?
I entirely understand that if one has a Himalayan porcupine one might hesitate to release it into the wild; that might have unforeseen and unforeseeable circumstances. On the other hand, we also have reference to "Dormouse, Fat" whose Latin name is glis glis. I do not know how many noble Lords know anyone who possesses a glis glis but it should not be released into the wild. The list refers also to melopsittacus undulatus. I do not know how many noble Lords know what that is; it is a budgerigar. This Bill proposes to make, on indictment, imprisonable for two years, the release into the wild of a budgerigar. I suspect that if a number of members of the RSPB knew that the noble Baroness, Lady Young, had persuaded the Government to introduce such draconian penalties for releasing a budgerigar, a number of budgerigars would cease forthwith to be members of the RSPB!
I could go on, because there are many other strange things in the list. For example, anyone who causes a giant hogweed to grow in the wild can be subject to two years' imprisonment on indictment. I do not have any brief for giant hogweeds. They are nasty things and if one escaped from me I would regret it, but I am not sure that I would deserve to be subject to even six months in prison, let alone two years.
Such legislation discredits the conservation movement and alienates many rural people, who will be encouraged to feel contempt and resentment against it and the Government that enacted it. The suggestion that the courts would never apply such sentences for those offences merely strengthens the argument that Parliament should not introduce the sanctions.
I need hardly say that this is a time when all parties are seeking means of reducing the prison population rather than increasing it. Community service orders--or community punishment orders, as they are being renamed--might well be appropriate for some offenders, although not for the releasers of budgies. Unfortunately, they are currently available only for offences for which imprisonment is also prescribed. However, the Home Secretary announced in May a Home Office review of the sentencing framework in England and Wales. This morning I spoke to Mr John Halliday, who is directing the study, which is due for completion in May next year. I understand that he will be considering the possibility of decoupling community punishment orders from imprisonable offences. This is a particularly inappropriate moment to extend so greatly the offences for which prison can be prescribed.
Finally, in certain cases there could be custodial remedies for persistent offenders through the civil injunction procedures. It would be possible for an interested body, such as the RSPB, or a landowner to apply to a court for an injunction restraining an individual who had been a persistent offender under the Act from continuing to enter land to interfere with wildlife. Once such an injunction was granted, an offender who broke it would be liable to immediate imprisonment under the normal contempt procedures.
This is not a party matter. It is in the interests of all of us as legislators to ensure that the people of this country, urban and rural, support and co-operate with government measures to safeguard nature. As one who yields to no one in my determination to protect our natural environment, I ask your Lordships to prevent this excellent Bill being marred by the divisive, heavy-handed and ludicrous remedies in Schedule 12.
My Lords, having put my name to the amendment, it is appropriate that I briefly explain why. On Report, I pointed out that the provision could result in serious injustice. I am as keen on conservation as anyone in the House. However, we also have to be aware of the need for justice.
A gamekeeper could be sent to prison, whereas it is the employer who required him to pursue policies that brought him into conflict with the law who should be imprisoned, not the employee. A gamekeeper employed by a ruthless owner of a shoot who required a huge proportion of the birds that were released to be shot, would inevitably be tempted to kill the raptors to keep his job and possibly his house. I believe that we should be very careful before we put a man who is under enormous pressure into the dock, and perhaps into prison, when the person who employs him and who has required him to act as he did gets away scot-free. I should not like to see that happen, much as I should like to see those who are responsible for the situation being penalised. I trust that the House will consider this amendment most sympathetically.
My Lords, when we supported the amendments tabled by the noble Lord, Lord Buxton, a week ago, the noble Lord, Lord Whitty, made the following criticism, among others:
"I cannot think of any other area of crime where the occupation of the perpetrator differentiates how they will be punished".--[Official Report, 16/11/00; col. 481.]
That is probably a valid argument, hence the present amendment which makes no mention of occupation. However, like the noble Lord, Lord Marlesford, although I do not object to higher fines and even community service orders, could that be in some way arranged, I remain very unhappy about the option of imprisonment and certainly imprisonment for up to two years. As the noble Lord, Lord Buxton, said,
"everything has gone right without custodial sentences. Why in the name of God do they suddenly want to ratchet up the position and introduce such a provision when it has been proved to be completely unnecessary?".--[Official Report, 16/11/00; col. 482.]
Last week I asked, and do so again this evening, whether the Government want to follow in the footsteps of the previous administration, who introduced a record number of new offences for which individuals could be fined or imprisoned, and increase the number of maximum penalties for existing offences? If they persist in following in the footsteps of the pr