§ 7.0 p.m.
§ Mr. John Smith
I beg to move, Amendment No. 3, in page 3, line 36, at end insert:'( ) An order under subsection (5) above may, if the Secretary of State is satisfied that it should do so, provide for the creation of 262 an alternative right of way for use as a replacement for any right of way which is extinguished by the order'.
§ Mr. Deputy Speaker (Mr. George Thomas)
With this amendment we may consider also the following amendments:
No. 33, in page 3, line 36, at end insert:'An order under subsection (5) above may, if the Secretary of State is satisfied it should do so, provide for the creation of an alternative crofting or community right for use as a replacement for any such right which is extinguished by the order'.No. 39, in Clause 20, page 12, line 31, at end insert:'crofting or community right' means any right of access to the foreshore, wayleave, right to draw, dam or receive water or grazing right or right to cut, stack and carry away peat".No. 43, in page 3, line 36, at end insert:'( ) Where a right of common grazing is affected by an order under subsection (5) above, the Secretary of State shall consult with the crofters commission and an order may provide for an alternative or replacement right of common grazing or for modification of an existing right'.
§ Mr. Smith
This amendment gives effect to an undertaking given by myself 263 in Committee when we accepted the spirit of an amendment moved by the hon. Member for Dundee, East (Mr. Wilson) to provide that an order under subsection (5) which extinguishes a private right of way may, if the Secretary of State is satisfied, provide for an alternative right of way for use as a replacement. This was widely accepted in Committee.
I might now make such observations as will be for the assistance of this House on the other amendments grouped with Amendment No. 3. Generally, they relate to the position of crofting rights of common grazing and other possible crofting rights, and seek to provide alternative rights of grazing, in the case of an amendment from the official Opposition, and to other matters, in the case of amendments put down in the name of the hon. Member for Dundee, East.
It might save argument if I point out to hon. Members the way in which Clause 5 is framed. It is that the Secretary of State may by order extinguish any public rights. It does not apply to private rights. I am advised that crofting rights are not public rights since, for example, members of the public cannot graze their sheep on croftings. There is an arrangement between landlord and tenant and this constitutes a private interest in land and therefore could not be extinguished by an order made by the Secretary of State under Clause 5.
But if land over which rights were exercised were compulsorily acquired by the Secretary of State, whether by normal procedure or by expedited acquisition order, compensation would be payable to the crofters under the Land Compensation Act for the acquisition of their interests.
That explanation might remove some of the fears which were obviously behind some of the amendments. If it does not apply if they are not a public right and are not caught by Clause 5, hon. Members need not continue the concern expressed in the amendments.
§ Mr. Gray
When we dealt with the Bill in Committee I spoke in connection with a similar amendment. At that time I dealt with public rights, private rights and community rights. While I welcome the amendment which the Government have tabled, and am reassured by what 264 the Minister said—reassured not only by his speaking in his capacity as an Under-Secretary but in his professional capacity also—I would remind him that in relation to crofting tenure the relationship between tenant and landlord is a private right and that there also enters into this matter a community right. This is something about which many of us on this side have had great fears because sometimes rights develop and are not very clearly defined for, as the hon. Gentleman will be aware, crofting tenure is different from any other kind of tenure, and a considerable number of anomalies exist therein.
I should like an assurance from the Minister—and I know that it may be difficult for him to give me one at this stage—that where these community rights are interfered with, replacement will take place. This may sound a difficult thing to ask, but it may not be just a case of a footpath, or the right to use a footpath, being taken away. It may affect the full rights of a community, included in common grazings, which may affect a great many tenants in a crofting community. These problems have worried us all for some time.
The Minister will notice that in our amendment we ask that the Crofters Commission be brought into this matter. The Secretary of State appoints the commissioners, and here is a body in whom he can vest his trust in this matter.
Amendment No. 33, in the name of hon. Members of the Scottish National Party, provides for the creation of an alternative crofting or community right for use as a replacement for any such right as is extinguished by order, and I can quite accept that.
Our amendment in the name of the official Opposition, under which we want the Crofters Commission consulted in such matters, is of real value. That is emphasised by the other amendment which shows the various rights of crofting communities which could be interfered with. Hon. Members must realise that we want particular attention paid to existing rights enjoyed by crofting communities because we are most anxious that these shall not be interfered with and that, if they are, some reasonable alternative shall be provided for these people.
§ Mr. Grimond
The Government are to be congratulated on this amendment, fulfilling a pledge given in Committee. I want to state my opinion on this question of crofting rights, which are extremely important. I cannot now go through all of them fully, but they include peat cutting, access to peat and access to foreshore, and I would mention particularly the udal rights of Orkney and Shetland. In many parts of my constituency it is important for sheep to find seaweed and shelter as well as for fishermen, lobster men and others to reach the foreshore.
I wish to make only one suggestion to the Government. I wonder whether when the Bill reaches another place they will look at the possibility of suspending these rights. Is it necessary to extinguish such things as rights of way? Cannot they be suspended and, so to speak, brought back if and when a site is no longer needed?
§ Mr. Donald Stewart (Western Isles)
Amendments Nos. 33 and 39 have already been covered to some extent by the Minister. I join those who have already congratulated the Government on putting down Amendment No. 3, which helps the situation considerably, but I do not see why Amendment No. 33 could not be accepted by the Government since the discretion of the Secretary of State is still maintained. As these rights have existed for countless generations, it would be a pity if they were abolished because of the extraction of oil resources which, everybody agrees, are comparatively finite.
In relation to Amendment No. 39, there are questions of access to the foreshore for boats and the question of collecting seaweed which offers a living for quite a number of people in my constituency. Since peat cutting may be the only source of fuel for people in some of these areas, because of their economy these rights should be maintained; and since the discretion of the Secretary of State is allowed for in the amendments, I hope that the Government will accept them.
§ Mr. Gordon Wilson
Perhaps I may make a brief contribution on certain technical points referred to by the Minister. I agree from the legal point of view that there are differences between public rights and private rights, 266 and that, unfortunately, one of the difficulties is that crofting and community rights fall fairly and squarely almost between the two. Although in a sense they are private rights enjoyed collectively by a group of people, equally they are a public right, in the sense that communities depend upon them and they are shared in common. I appreciate the drafting difficulties that this may cause the Government, and it is difficult to suggest an amendment to cover the point. The definition of public rights of way referred to in Clause 2(5) may help the position. What is important—this has been stressed by the hon. Member for Ross and Cromarty (Mr. Gray), my hon. Friend the Member for Western Isles (Mr. Stewart) and the right hon. Member for Orkney and Shetland (Mr. Grimond)—is that these crofting and community rights are vital to the areas concerned. We are dealing here with a new principle, and if it were technically possible for alternative rights or modifications to existing rights to be given the communities concerned would be very appreciative of that.
§ Mr. Hector Monro (Dumfries)
Of course we welcome the amendment moved by the Minister in consequence of what he said in Committee at col. 304. I appreciate, too, that it is a fairly narrow amendment and we put forward many more arguments than the one concerning the rights of way. I am sure that the Minister will have refreshed his memory on what was said from col. 302 to col. 307 and on other questions which we considered to be particularly important in connection with what we thought could happen. We looked at all the aspects as well as the central one, which is that we want oil platforms developed as quickly as possible. I appreciate that the designation of sea areas comes under Clause 3, and the Minister has made a concession there. My hon. Friend the Member for North Angus and Mearns (Mr. Buchanan-Smith) will deal with that at the appropriate moment, but the question of designated sea areas may have something to do with rights of way being extinguished. It is right to consider the point in that context.
The amendment provides that the Secretary of State has the power to provide for the creation of new rights of way if the old ones are extinguished by order. 267 May we be told whose, and what advice the Secretary of State will accept? We had astonishing difficulty in getting him to agree, as he will later, even to approach the fishing authorities for advice on the designated sea areas. Will he be going to the local authorities, the crofters and other interested parties to decide whether or not a new right of way shall be provided? If that were put on the record it would at least give those people some confidence that their views would be respected in due course.
I hope that we shall not be unduly restrictive over the extinction of rights of way. We are not dealing with national defence or security; we are dealing only with the construction of oil platforms. It is wrong to sterilise a mile or, perhaps, half a mile of the foreshore, just because a platform is being built there. Provided the general public do not make a nuisance of themselves I do not see why they should not be allowed to continue to walk along the foreshore above or below the high water mark—which may be considered a right of way under the clause.
I know that the Minister wants to hurry along with the Bill, but we are equally keen to know what is to happen. Can he tell us, on the points we raised in Committee, what are his conclusions about wildfowlers? Where do these people stand under the clause? What is the position on recreational rights, which are equally important? The Minister must not try to shirk this, because it affects quite important areas of the most beautiful regions of Scotland. We do not want to see them sterilised unnecessarily. Will the Minister comment also on the right to go on to the beach for sailing, boating, swimming, or whatever the general public want to do? We must not underestimate the inconvenience that these platform sites will cause. That is why we want to know what the Minister's views are.
The Minister made an important statement about common grazing rights, but even he will know that the sheep cannot read. How will they know the difference between private and public grazing rights? Will the Government make the site contractors liable for fencing off these areas? What will be the position in the future? 268 The Minister has explained his position in legal terms but we want something a little more expansive, so that the crofters will know that the Government have given detailed thought to the matter. We want spelt out in more detail precisely what the crofters rights will be. In Committee the hon. Member for Western Isles (Mr. Stewart), in col. 303, asked specifically about seaweed and the cutting of peat, but we have not heard a squeak today from the Minister in reply to those points. Will he answer them in response to this evening's debate?
We are pleased that the Minister made a limited concession, but we want spelt out the extent to which the other interests I have mentioned will be affected. We want to know exactly the position of the people who for many years have had an interest in these areas. When they know that, they may be reassured, but they want to know.
§ Mr. John Smith
I thought that I had made the position perfectly clear when I moved the amendment. It was not a question of legal language—and the hon. Member for Dumfries (Mr. Monro) can hear as well as anyone else. I said that these crofting rights which appear to be private rights because they are not open to the public could not be struck at by Clause 5 because the clause gives the Secretary of State power to extinguish a public right of way or a public right. That is not a matter of detailed legality. It is a simple proposition. On one or two other points I seem almost to have wasted my time trying to explain them, because I could not have made them any clearer. We could not under the powers of the Bill affect private rights, only public rights.
This will give a safeguard to the people concerned. I am advised that certain rights such as grazing rights are not public because it is not possible for just anyone to exercise them. Only the crofters may do that.
§ Mr. Gordon Wilson
I appreciate what the Minister is saying, but does he not accept that where crofting land and the rights that go with it are taken over there may be a disadvantage to the communities concerned. I appreciate that the clause as drafted may not assist very much, but we are trying to emphasise once more to the Minister the importance of such rights. Maybe we have been approaching 269 this question from the wrong angle, but will the Minister take the whole matter back, work it out and see what can be done to provide alternative rights to the ones which may be affected to the impoverishment of the crofting communities?
§ Mr. Smith
We are discussing amendments to subsection (5) and not the general philosophy of the Bill or the general powers we have discussed elsewhere. The Bill proposes that the Secretary of State may take powers to extinguish certain public rights of way.
In response to the proposition that we should have these powers, certain other amendments have been put down. My reply to them is that as they affect private rights they are not struck at by the provision the Secretary of State wishes to have, so we do not need to concern ourselves with them now. In so far as there may be public rights of access to a foreshore, for example, they would presumably be regarded as rights of way, and the Secretary of State would have power to order an alternative right of way if he were satisfied that that would be necessary. It was perhaps one of the matters hon. Members had in mind that a public right of way could be struck at, but we have given powers in the amendment for the Secretary of State to provide an alternative.
There are legal difficulties about the interesting suggestion by the right hon. Member for Orkney and Shetland (Mr. Grimond) of suspending rights, putting them on the shelf, as it were, till the situation has ended. Perhaps the best way is to give the Secretary of State the alternative powers we have given in the amendment, but the right hon. Gentleman's suggestion was ingenious.
The hon. Member for Dumfries (Mr. Monro) raised again the question of wild-fowling foreshore rights. I think that perhaps he has in mind access to the foreshore where wildfowling is practised on the foreshore. In so far as there is an access there, and it is a public right of way, that could be struck at by the Bill, but the Secretary of State has the power under the amendment to create an alternative right of way.
I hope that there will not be the possibility, as a result of the Bill, of sterilising large areas of the foreshore. That certainly would not happen under this part 270 of the Bill, because the power is just one given to the Secretary of State to vary a public right of way or other public rights. That is what we should concentrate our attention on.
My understanding is that where wild-fowling is practised on the foreshore it is no more than a customary right, which does not attach to the ownership of land. Wildfowl are distinct from game birds, which can be the subject of a private interest, such as the lease of grouse shooting, a definite interest which can be valued and compensated.
The hon. Gentleman also mentioned access for other recreational pursuits, such as bathing and boating. We want to preserve as many such public rights as possible, which is why we have taken powers to provide a reasonable alternative where we have to interfere with a public right of way. That is the sensible way of dealing with the matter.
I hope that the House will accept the amendment, and agree that in the circumstances the other amendments are not necessary.
§ Amendment agreed to.