§ '.—(1) Any person with an interest in land who shows that he has suffered a loss in consequence of the exercise of the right of access conferred by section 2(1) of this Act, shall be entitled to compensation to make good such loss.
§ (2) A claim for compensation under this section shall be made within such time and in such manner as may be prescribed in regulations made by the Secretary of State.
§ (3) In this section "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 interest in land or by virtue of a licence or agreement, and in particular includes sporting rights:.—[Mr. Garnier.]
§ Brought up, and read the First time.
§ Mr. Garnier
I beg to move, That the clause be read a Second time.
New clause 16 should be uncontroversial, as it is in line not only with legislation sponsored by both Labour and Conservative Governments, but with the common law. If it is accepted, it will allow the Secretary of State or the Minister to state with confidence that the Bill is compatible with the European convention on human rights and the Human Rights Act 1998. The Government have placed great store on statements under section 19 of that Act. Although the Act does not come into force until 2 October 2000, it is right that we should be told now whether the Government are confident that the Bill is to be covered by a statement under either section 19(1)(a) or 19(1)(b).
Perhaps the Minister will remember that when he made his statement on the publication of his consultation document and I asked him about compensation arrangements, he was so unsighted or inadequately prepared, or both, that the Speaker, on hearing his answer, allowed me to ask my question again. His second answer was no better than his first.
Why do I say that new clause 16 is in line with legislation sponsored by both Labour and Conservative Governments? Part V of the National Parks and Access to the Countryside Act 1949, which was passed under a Labour Government, and sections 25 to 28 of the Highways Act 1980, which was passed under a Conservative Government, contain provisions permitting access over land, but also provide for compensation to be payable to the extent that the land's value has depreciated by reason of public access.
The approach taken in those statutes accords with established constitutional practice and European convention on human rights guidelines, and provides clear precedents on how a fair balance is to be struck on such matters in the United Kingdom. Those considerations call into question the legal propriety of the approach taken in the Bill.
Although I have referred to those statutes, the common law also recognises the importance of compensation for individuals called upon to make sacrifices of their property in the public interest. I refer to the well-known case of Burmah Oil, which was decided, in 1965, by the Judicial Committee of the other place. That case embodies 900 the principle in a presumption of statutory interpretation that Parliament is generally to be taken to have intended compensation to be payable.
That that was in fact the intention of Parliament in connection, for example, with the 1949 Act is confirmed by the comments of the late John Silkin, the Act's sponsoring Minister. On Second Reading, he said:I think it is right that if an owner of land suffers loss, and can prove that he has suffered loss, as a result of allowing the public to roam over his land, he should be entitled to compensation.—[Official Report, 31 March 1949; Vol. 463, c. 1480.]Those comments seem to reflect established constitutional practice.
What about landowners' rights under the European convention on human rights? First, the Government have publicly stated—in the White Paper "Rights Brought Home", and in the provisions of the Human Rights Act itself—their commitment to comply with the ECHR. Secondly, property rights are protected under the European convention. Thirdly, the right to respect for one's home and privacy is also respected in the European convention.
Fourthly, to be compatible with the ECHR, any open countryside enactment would have to strike a fair balance—which means, inter alia, that access to the open countryside must not place a disproportionate burden on landowners, and that it must not cause any unjustified discrimination.
Fifthly, the Bill—albeit through silence—makes it clear that no compensation will be payable to landowners whose land becomes subject to the new rights of access. It appears that that refusal of compensation rests on an unexplored factual premise that no financial loss would be caused. We have yet to hear the reasons for that, although it is contradicted by a detailed and authoritative study presented by Dr. Noel Russell of Manchester university.
In those circumstances, we suggest that, without new clause 16, the Bill would be open to serious challenge under the European convention. As no compensation whatsoever is proposed for the losses that will occur, it is hard to see how the Government can begin to justify the fair balance requirement for interference with property rights.
§ Mr. Lembit Öpik (Montgomeryshire)
Given that the hon. and learned Gentleman is saying that it is a matter of natural justice that there should be compensation if the land value goes down, does he agree that, in essence, either the land value will go down, in which case there will be a strong case for compensation, or it will not, in which case the Government should not be afraid of accepting that responsibility?
§ Mr. Garnier
I entirely agree with the hon. Gentleman and I shall develop that point later in my speech.
Statutes currently permitting access over land provide for compensation to be payable for the amount by which the value of the land has been depreciated by reason of the public access. The approach taken in these statutes accords with established constitutional practice and ECHR requirements. They also provide clear parliamentary precedents on how a fair balance is to be struck.
The Government already have a reputation for saying one thing and doing another. They should not enhance that aspect of their reputation by leaving this Bill in its 901 current state. Ministers are now required to consider at an early stage whether any Bill is convention compatible and to ensure that they, their Departments and their officials are fully seized of the gravity of the obligations set out in the convention.
I have to assume that the Minister, especially after the question and answer session that he and I had when he made his statement 18 months or so ago, has already given careful consideration to possible objections to the Bill that I shall draw to his attention.
First, as he will accept, property rights are protected under the ECHR and should be protected by the Bill. ECHR rights are to be secured and enjoyed by everyone. That is clear from the text of article 1 of the convention. That it includes companies, partnerships and other legal as well as natural persons is made clear in the opening words of article 1 of protocol 1, which protects property rights. All of us as citizens have the right to protection of our property rights under the convention.
Protocol 1 to article 1 provides:Every natural or legal person is entitled to the peaceful enjoyment of all his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.The case law of the European Court of Human Rights establishes that article 1 of that protocol contains three rules. I quote from the court's judgment in the case of Sporrong v. Lonroth in 1983:The first rule, which is of general nature, announces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph.Secondly, the right to respect for one's home and privacy is also protected under the ECHR. Any proposal for giving rights of access to the countryside has to be considered under article 8 of the convention which provides:
The word "home", the European court has observed in the case of Neimietz v. Germany, deserves wide interpretation and is not confined to one's home. In the same case, the court did not consider it possible or necessary to attempt an exhaustive definition of the notion of private life; again it was not prepared to define that concept narrowly.
- (1) Everyone has the right to respect for his private and family life, his home and his correspondence.
- (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
A right of access to land where the landowner has his home would clearly interfere with the rights to respect for the home and to privacy, an integral aspect of which is the entitlement to exclude entirely the outside world. The Government's consultation paper, published about 902 18 months ago, appeared to recognise the need to give protection to the relevant convention rights. Paragraph 3.16 stated:In general, the Government considers that people should have a right of access only to land which is not developed. This will protect people's privacy in their homes, gardens and places where they go to work, other than on agricultural and forestry land.I welcome the Government's recognition of the need to safeguard rights protected by article 8 of the convention.
Thirdly, to be compatible with the European convention, any access provision must strike a fair balance. That means that access to the open countryside must not place a disproportionate burden on landowners and must not cause discrimination.
Depending on the precise circumstances of individual landowners, enactment of clause 2 may require scrutiny under article 8 or under any of the three protocol 1/article 1 rules to which I have referred. Whichever applies, the European Court's case law establishes that measures taken must strike a fair balance, must not place a disproportionate burden on landowners, and must not cause discrimination.
Enactment of the proposals in the Bill could lead to the different treatment of lowland and upland sheep farmers, for example, or of a commercial shoot operated on moorland subject to rights of access and one on land without rights of access. Those distinctions will have to be justified in the light of article 14, which the Minister knows only too well prohibits discrimination and reinforces the case for compensation to be paid to landowners affected by a right to roam.
The level of compensation provided is central to an assessment of whether the fair balance has been struck. The recent case of Lithgow v. the United Kingdom offers guidance in that regard. In that case, the court judge stated:Compensation terms are material to the assessment of whether a fair balance has been struck between the various interests at stake and, notably, whether a disproportionate burden has been imposed on the person deprived of his possessions.Lithgow's case also indicates that "only in exceptional circumstances" can deprivation of possessions without compensation be justified.
The Government were explicit in proposal 29 in their consultation paper thatowners and occupiers should not be eligible for general compensation for access to their land.That position is implicitly maintained in the Bill. In the light of the European Court of Human Rights case law, that is a striking omission. Clause 2 will reduce the existing rights of landowners significantly and can be characterised only as a deprivation of possession. Only in exceptional circumstances can deprivation take place justifiably without compensation.
In the consultation paper, the Government tried to justify the result by claiming in paragraph 3.48 that the proposals wouldnot have major financial implicationsfor most of those affected, becauseexperience suggests that there will not usually be any significant damage to walls, fences and the land itself.I have referred already to Dr. Russell's report, which casts doubt on that assertion. It suggests that there are likely to be significant cost implications in proposals similar to 903 those in the Bill, and that they would have an effect on land values. Since the consultation paper was published, the Government have not advanced any counter-arguments in response to the Russell report.
§ Mr. Hogg
My hon. and learned Friend spoke of the diminution in land values that could flow from the right of access. Does he intend to deal with the costs incurred by landowners who are obliged to maintain bridges, buy insurance and ensure that the land is clear of obstacles, and so on? Those out-of-pocket expenses may be different in kind from a diminution in land value. Does my hon. and learned Friend think that compensation should be payable in respect of such expenditure, and is the matter covered by the new clause?
§ Mr. Garnier
My right hon. and learned Friend is right to draw the attention of the House to that matter. Indeed, he drew attention to it during an earlier debate this evening, in a very lucid exposition. The problem that I recognise in a Bill from which new clause 16 is absent is that the burden of insurance falls disproportionately upon the landowner when he is performing a task for the public good. It seems to me—and I dare say that my right hon. and learned Friend agrees—that it is unfair, unjust and contrary to the human rights legislation for the Government to require individual landowners to take upon themselves a disproportionate burden of the cost of furnishing safety and access provision when it is for the general public that such measures are being provided.
§ Mr. Grieve
We discussed this issue earlier with regard to trespassers, and it is central. The Government have made it clear that the duty of the landowner towards the people coming on to the land will remain the same. Those people will have the same rights under the Occupiers' Liability Act 1984 whether they are on access land or on land on which they have no right to be. From the landowner's point of view, the difference is that he will have to make a completely different assessment about the risk of such people coming into contact with material that may injure them. They will be coming on to his land in far larger numbers, and the risk will be augmented as a result.
§ Mr. Garnier
My hon. Friend makes a point of equal value to that made by my right hon. and learned Friend. It seems to us a matter of fairness and justice that the burden of insurance should be evenly distributed across the taxpaying population, and not visited solely on individual landowners, be they human beings or corporations. I am grateful to my hon. Friend and my right hon. and learned Friend for their assistance in this matter.
§ Mr. Simon Thomas
There are landowners in my constituency, in the Ystwyth valley, who have ancient lead and silver mineworkings on their land. They will now have to have regard to the fact that large numbers of people will be traversing their land and will have to expend considerable sums of money to make those mineworkings safe for public access. Should they not have a route to compensation under the new clause?
§ Mr. Garnier
As I understand it—and I am sure that either the hon. Gentleman or the right hon. Member for 904 Caernarfon (Mr. Wigley) will correct me if I am wrong—owners of mines are already required to keep their mineworkings safe. None the less, the hon. Gentleman's general point fits in well with the new clause that we propose.
May I take this opportunity to join my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) in commiserating with the House—up to a point—in that we shall no longer have the advantage of the presence of the hon. Gentleman' s party leader, the right hon. Member for Caernarfon, after the next election? The contest for his seat will be fiercely fought, but I dare say that the right hon. Gentleman will have plenty to do in Wales after the end of his career in this place.
§ Mr. Bennett
Does the hon. and learned Gentleman not accept that there is an existing liability on landowners under health and safety regulations, under which they must ensure that the land that is worked on is safe for those who work on it? I cannot see that there is any change of degree in other people coming on to the land, or that any extra standards are required, other than those that exist under health and safety measures at present.
§ Mr. Garnier
In that question, the hon. Gentleman—I do not know whether he speaks on behalf of the whole of his party—portrays a complete misunderstanding of the nature of the balance of risk and the concept of proportionality under the European convention on human rights. The Human Rights Act 1998 was passed with his support, and he ought really to study the jurisprudence under that system of law rather more closely before making such interventions.
Of course all employers have a duty of care to look after their employees, whether they work in a factory or on the open land. However, the size of the problem will be wholly different under the new access provisions. Thousands of people will be given the right of access to other people's land under this measure.
§ Mr. Garnier
Millions, as my right hon. and learned Friend says. It does not matter what the accurate number is; the principle is clear and concerns the proportionality of this invasion of property rights. I use that term not in an old-fashioned Tory sense but in a strict legal sense.
§ Mr. Garnier
It is interesting that Mr. Angry, the hon. Member for Huddersfield (Mr. Sheerman)—who is well known for opening his mouth before he engages his brain—is prepared to snigger at the rights of his constituents and possibly others while the debate on compensation progresses. I regret that the hon. Gentleman—who is now the Chairman of a Select Committee—should behave as he has this evening. [Interruption.] If the hon. Gentleman wishes to witter on, may I suggest that he does so either on his feet—if has the guts to get on his feet—or outside this Chamber? [HON. MEMBERS: "Oh!"] The Government are giving the public a right to roam; I suggest that the hon. Gentleman makes use of it.
905 The Government's consultation paper suggested that a refusal of compensation could be justified on the basis that the benefits of the proposal will outweigh its costs, but that confuses two questions. Even if the public interest justifies interference in principle, it is a different matter to say that the costs can be imposed without compensation. On the contrary, as has been seen, the European convention on human rights generally requires that, even where the public benefit outweighs any loss to individual owners, those owners should be compensated so that the loss is equitable and shared among the entire public, rather than imposed disproportionately on affected landowners. That underscores the points made by right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and my hon. Friend the Member for Beaconsfield (Mr. Grieve)
The consultation paper contained a number of inconsistencies; are we surprised, with this Government? For example, it said that the public benefit would accrue from "increased opportunities for recreation" which will improve public health and reduce social divisions. It also anticipated thatincreased walking in the open countrysidewould flow from the Bill. Yet when it came to compensation, the paper indicated that theproposals are not expected to result immediately in a sizeable increase in walking in the countryside but rather an expansion of the area over which people walk".That is comforting.
I trust that the Government will keep an open mind on the highly important issue of compensation. The fact that they were guilty of inconsistency in their consultation paper is worrying but not fatal. I urge the Minister to consider carefully the terms of new clause 16 and, with all due diffidence, invite him to say why the Bill could not be improved by its addition.
§ Mr. Hogg
If my hon. and learned Friend manages to persuade the Government to accede to the principle of new clause 16, will he urge on the Minister the desirability of setting the scheme in the Bill? And if the Minister insists on proceeding by way of regulation, will my hon. and learned Friend urge on him the desirability of making the regulations subject to the affirmative resolution procedure?
§ Mr. Garnier
I am most grateful to my right hon. and learned Friend. One of my great concerns over the past three years—and, indeed, when we were in government—has been that Ministers have taken unto themselves powers to make legislation by regulation and secondary powers, not allowing the House properly to consider the true effect of the powers that they are giving themselves. Let me take an example from the legal affairs portfolio. Under the Access to Justice Act 1999, the Lord Chancellor gave himself 17—or it may have been 27—regulatory powers to create law without this House being able to deal with it, either in a Bill or in the more acceptable way of dealing with secondary legislation mentioned by my right hon. and learned Friend the Member for Sleaford and North Hykeham.
An Act of Parliament that conflicts with a convention—especially a convention that the Government have deliberately brought into domestic law—may please the Treasury now, but it will not please the Treasury when the legal challenges start in the courts.
906 A solution may be found in the National Parks and Access to the Countryside Act 1949, which allowed a five-year period for any damage to become apparent. If there is no apparent need for compensation within five years, the Treasury will not suffer. If there is, it is just and sensible for compensation to be paid; it would be in compliance with the convention—not to mention the European Union charter of fundamental rights about which we are beginning to hear more.
I trust that the Minister has listened carefully to the points that I made on behalf of the Opposition and of all people who are interested in fairness under the Bill. I hope that he will give us some cogent reasons for his view—if such it is—that the new clause should not be accepted.
§ Mr. Wigley
I shall be interested to hear the Minister's response on the principle that compensation should be payable in the minority of cases in which circumstances might produce a material difference in the value of property, which might not only be the value of the land. I can think of one example in which access to open land is extremely close to a farmhouse. There is no other reasonable access. Many people will have to pass close to the farmhouse to gain access to the open land, so if that makes the house less valuable on the market, the question of compensation for its owners will arise.
That may apply in only a minority of cases, but other circumstances may arise. My hon. Friend the Member for Ceredigion (Mr. Thomas) and others referred to dangers on the land. Extra expenditure might be needed to cope with such dangers. Such cases might be few, but the Human Rights Act 1998 and other legislation must surely come into play. There must be some provision in the Bill to deal with such matters. When the Minister responds, will he address those difficult cases for which there should be a mechanism in the Bill?
§ Mr. David Heath
My hon. Friend the Member for Montgomeryshire (Mr. Öpik) was right to point out during an intervention on the hon. and learned Member for Harborough (Mr. Garnier) that there are two options: either a significant and recognisable loss to individuals will be occasioned by the Bill, in which case it must be right that the Government have a duty to provide compensation; or there will be no loss, so no compensation will be paid and the Government will not be the losers.
I tend towards the second option. There will not be many cases in which a substantial loss occurs as a result of the measure. In some circumstances, a quantifiable loss may be established. I take seriously the fact that, in the case of hill farmers—especially tenants—we are dealing with people whose land is only marginally viable. A small difference in their circumstances could have catastrophic effects on their business. It would be wrong for Parliament arbitrarily to deprive them of their living through this measure—albeit unintentionally.
No compensation process should allow either spurious claims or claims that might be made to cause difficulty for the Government or to bring the legislation into disrepute. That would be quite wrong. However, as the hon. and learned Member for Harborough pointed out, there are mechanisms that would deal with that. For example, in Committee, I cited the provisions under the National Parks and Access to the Countryside Act 1949, 907 which require that genuine loss must be shown before compensation is payable. That seems to be entirely appropriate.
I cannot possibly compete with the hon. and learned Member's exposition concerning the effect of the Human Rights Act 1998—nor would I wish to do so. He raised serious questions which the Government must answer. They have relied so far only on the assurance that the Bill, as currently framed, accords with that Act. The Government should at least respond to the case for a compensation mechanism. I applaud the fact that we have had the opportunity to discuss such a mechanism, but, unless the Minister can assure me on the very important points that have been raised, I will support the new clause in the Lobby if it is pressed to the vote.
§ Miss Anne McIntosh (Vale of York)
I congratulate my hon. and learned Friend the Member for Harborough (Mr. Garnier) on having moved the new clause so eloquently. I lament the fact that the Minister apparently has such a closed mind, but perhaps he will prove me wrong. His answers may show that he has an open mind on the issue of compensation. However, in response to a question from the hon. Member for Pendle (Mr. Prentice), the Minister said:A cost benefit study for the Government, undertaken by independent consultants, supports the view that landowners will not suffer significant losses or costs as a result of the new right of access such as would warrant the provision of compensation.—[Official Report, 17 March 1999; Vol. 327, c. 670W.]I support the new clause. Let me bring to the Minister's attention the fact that, if the Bill is enacted without it, a learned counsel not unrelated to the Prime Minister would be well equipped, when she returns from maternity leave, to bring one of the first cases under the European convention on human rights when it comes into force later this year.
I go further than my hon. and learned Friend the Member for Harborough. I argue vigorously that there could be three heads of compensation. The first, which as my hon. and learned Friend so eloquently outlined, is the right to protect property under the European convention on human rights. As he also said, the second is the right to compensation for preparing the ground for access. That point has received some sympathy in the House.
The third head of compensation, however, appears in new clause 3, which was regrettably not selected for debate. I hope that the Minister will also consider the provision in the new clause that calls for rights of compensation. It states:Any person who, on entering or remaining on access land for the purposes ofaccess and enjoyment of the land and who causes damage should make goodthat damage and compensate the landowner for any damage so caused.I have great sympathy with the arguments for a greater balance in the distribution of risk for insurance purposes between the interested parties. I have great pleasure in supporting new clause 16.
§ Mr. Hogg
I support the principle behind the new clause. As I told my hon. and learned Friend the Member 908 for Harborough (Mr. Garnier), I believe that such a scheme should be on the face of the Bill or, at the very least, should be dealt with by regulations that are subject to the affirmative resolution procedure. My preference, however, is for the provision to appear in the Bill.
We need to be clear about the fact that, as a result of the Bill, farmers and landowners will incur expenditure: that is absolutely certain and to deny it is an absurdity. The expenditure will fall under certain obvious heads. For example, it is certain that there will be increased insurance premiums to pay. The hon. Member for Denton and Reddish (Mr. Bennett) suggested that some landowners already incur insurance premiums in respect of their workers—and that, no doubt, is true. However, on the estates with which we are dealing, the number of workers can probably be counted on the fingers of two hands. We are speaking of unlimited access—millions of people will have the right of access, although it will not be exercised by millions. That will have a dramatic effect on the insurance premiums that must be paid, which will be much larger than any premiums currently paid.
Secondly, there will be greatly increased maintenance costs. As a consequence of considerably increased access, there will be much heavier usage of roads, tracks, bridges and so on, and inevitably costs will be incurred in making those good. The insurance companies will require regular inspections and the undertaking of maintenance works.
That brings me to the third head of expenditure. Leaving aside obvious making good of bridges and roads, there will be the obligation on the part of a landowner-farmer regularly to survey the land to see, for example, that there are no obvious or less obvious traps—the barbed wire and coils of wire that we mentioned when we discussed amendment No. 8. That is not a negligible burden.
Take another head, which is of a slightly different kind. There may be—I do not want to put it higher than that—economic loss flowing from the right of access. I can envisage certain obvious heads of economic loss—for example, the loss of lambs to flocks that are running on the mountainside. There may well be a diminution in lambing as a consequence of public access. There may well be a diminution in the value of shooting rights as a consequence of public access. That is real economic loss.
A different point—although in a sense it encapsulates the whole—is the plain fact that land is less valuable when other people have rights over it that they did not previously have. That is difficult to measure, but not impossible. From time to time, land valuation tribunals have had to consider the effect on land on which new easements or other rights are suddenly created. It is fundamentally wrong to deny that there will be both costs and loss.
That takes us to the difficult question of where the loss should fall. Historically, the House of Commons and, indeed, our constitutional system have not always recognised the need for compensation. There are those who know that I have been responsible for regulations that did not provide for compensation. I am thinking, for example, of the head deboning prohibitions that we imposed as part of the BSE requirements. There are many other examples, because historically the House has taken the view that when one imposes restrictions or 909 prohibitions, one does not compensate. That has been the historical point of view, and I have some sympathy with it, but I think that it is changing, for a number of reasons.
§ Mr. Garnier
I am grateful to my right hon. and learned Friend. Is not one of the reasons—perhaps the major reason—why it is changing the Human Rights Act 1998, and the need for Ministers to comply with section 19? The Government must make up their mind whether the Bill is to come under section 19(1)(a) or section 19(1)(b), and they must make it abundantly clear which route they intend to take.
§ Mr. Hogg
I entirely agree with my hon. and learned Friend. There are three reasons why we are changing from the historical position. The first is that Governments are regulating more in areas which are bringing about economic loss. We are therefore more sensitive to the issue than we have been historically. Secondly, there is a greater belief in defensible rights in the community as a whole which are capable of being quantified in monetary compensation than was the case 20 or 30 years ago. That is a factor which stands separate and independent from the European convention on human rights.
However, my hon. and learned Friend is right when he says that the introduction to domestic law of the European convention—particularly the articles on compensation—fundamentally alters the terms of trade. Therefore, although in the past I have justified the position that the Government should not pay compensation—
§ Mr. Deputy Speaker (Mr. Michael J. Martin)
I should not intervene, but those head deboners were in my constituency, and the right hon. and learned Gentleman was not very helpful at the time.
§ Mr. Hogg
First, I made no secret about the fact that I had done what you, Mr. Deputy Speaker, said I had done. Secondly, I am recanting, and that, Mr. Deputy Speaker, you should find immensely attractive.
I have in the past justified Government not paying compensation, but I have come to the view that I was probably wrong at the time. That we must change I am certain, because of the implications of the European convention.
A variety of arguments come into play. There are the arguments that stem from the European convention, incorporated into domestic law, but there is also the argument of natural justice. In the end, we have to determine where loss falls, and, when Parliament decides to impose burdens and costs on others, the state should shoulder that burden. We need to be cautious that we put in place a system that prevents individuals from fleecing the public, but that is not beyond our ability. Admittedly, it might be to the benefit of lawyers, and that might not be entirely welcome to the House.
§ Mr. Grieve
My right hon. and learned Friend may agree that, in view of the nature of the challenges that would be raised against the legislation when it reached the statute book, failure to introduce the new clause would probably be an even greater recipe for money for the legal profession.
§ Mr. Hogg
Yes, subject to the fact that there would be only one or two challenges, then a declaration of 910 incompatibility, and then the Government would be in the soup. The Opposition, and, I suspect, much of the rest of the House, are agreed that we need to look again at the matter with a view to considering a proper compensation scheme, which does not enable landowners to fleece the public but which ensures that proper costs and losses are reimbursed.
§ Mr. Grieve
The principle that has been put forward by my hon. and learned Friend the Member for Harborough (Mr. Garnier) in introducing new clause 16 is unarguable, and with the advent of the Human Rights Act and its incorporation of the European convention in our law, I am astonished that the matter has not been properly grasped by the Government.
The only explanation offered against compensation is that there is no necessity for it because the Government are confident, not of the lack of need to compensate, but of the fact that they cannot foresee any circumstances in which compensation might be required.
During the course of the evening, we have considered a number of areas where the likelihood of compensation must arise. I hope that the Minister will note that this is not simply a partisan issue. With regard to whether it was right that people on access land should be deprived of the protection of the Occupiers' Liability Acts, I share the Minister's view that they should not be, and that they should continue to have trespassers' protection. That is all very well, but who will pay for the extra costs on the landowner which must flow from such a provision? The risk will clearly be entirely different depending on whether a few dozen or many thousands come on to the land in any given year.
To pick up on a comment that was made earlier, all health and safety legislation—a subject with which I am familiar—is about balancing risk. When balancing risk, one must consider the number of people who are likely to come into contact with a specific risk. If the Bill succeeds, as the Minister for the Environment wants, he hopes to open up large tracts of countryside, which have hitherto been rarely visited—except sometimes by people creeping over it at night, as they did over Kinder Scout in the 1930s, or by some hon. Members, who like to sleep in other people's woodland or moorland. Such land will be accessible to many more people. The risk will therefore increase. There is no reason for the landowner to bear that burden.
I agree that there may be diminution in the value of the land, although the Minister may be right that it will be negligible or unidentifiable. However, he referred to honeypot areas, which may develop. What will happen in the case of a honeypot that was previously a large tract of countryside, in which people could experience quiet enjoyment but could find, after the Bill is enacted, that they have to share it with many thousands of people? It is astonishingly optimistic to believe that that will not have a quantifiable financial effect which requires compensation.
I hope that the Minister will reconsider, because the fairness of the Government's approach will be assessed partly by their willingness to accept the principle of compensation. They currently give the impression of being ostriches hiding their heads in the sand. I am convinced that they will receive some unpleasant 911 surprises. In the Minister's position, I would prefer to be able to say that the Government had faced the problem from the outset and that they would pay compensation when required, instead of giving the impression of running away from responsibility.
§ Mr. Meacher
In the past hour, we have listened to a rather lengthy, slightly legalistic and perhaps esoteric, but certainly one-sided, presentation of the costs and benefits of the Bill. I want to offer a more balanced presentation of the measure's impact.
New clause 16 would provide general compensation for landowners and others who have an interest in the land. The Government's position is clear: general compensation is not warranted. I went to considerable lengths in Committee to explain the reasons for that.
In drawing up the Bill, we have borne in mind the needs and interests of landowners and others who own and use the affected land. The Bill contains numerous safeguards designed to minimise the impact on landowners and managers. The right is limited to access on foot and is subject to comprehensive restrictions. Even swimming or organised games are not allowed under the new right. The affected land is uncultivated, and often in the most wild areas of the country. Walking through fields of crops, even where livestock are likely to be intensively grazed, is not permitted. Dogs must be on leads where there are livestock. Buildings and their curtilages, including gardens, will be specifically excluded, although we do not expect to find many houses in open countryside.
§ Mr. Garnier
The Minister's remarks are doubtless true and interesting. However, they do not answer our point. What is the difference between general compensation and any other sort of compensation that he may have in mind?
§ Mr. Meacher
General compensation would be compensation for the general right of access allowing people to walk over open and uncultivated country that is privately owned. As for specific compensation, referred to by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), I have made it clear repeatedly that the landowner or land manager would be able to recoup the costs incurred in facilitating and maintaining access—for example, providing stiles, waymarks or car parks.
The Bill makes it clear that the right will not interfere with landowners' ability to use and develop their land as they wish. Although we do not expect walkers to pose significant problems for landowners, we have provided for landowners to have the right to close their land for up to 28 days for any reason and without permission. [Interruption.] I know that the hon. Member for South-East Cambridgeshire (Mr. Paice) is exceedingly familiar with the subject, but others may be less so.
If there are genuine land management reasons for a need to restrict access still further, landowners will be able to apply to the countryside bodies or to national park authorities.
§ Mr. Meacher
I cannot refer the House to the clause instantly, but I can quickly give the right hon. and learned Gentleman the justification in the Bill. What I have said is unquestionably the case, although I do not carry the details of 75 clauses in my head.
§ Mr. Meacher
The hon. and learned Gentleman has already intervened. I shall allow him to do so once more, but I am trying to make a case. I listened carefully to him when he tried to make a case for three or four times as long. If he listens a little more to what I have to say, I will give way to him later if he wishes.
The Government recognise—the right hon. Member for Caernarfon (Mr. Wigley) raised this point—that in the more popular areas visitor pressure may cause wear and tear, and is most likely to have an impact on land management. It is precisely in such areas that we shall want to ensure that arrangements are made for the effective management of access. We are, for example, making provision for the creation of new means of access, and for the appointment of wardens where appropriate.
Of course there are provisions for diversion of rights of way. I think that the Bill takes into account the problem that the right hon. Gentleman said was confined to a small minority of cases—but I see that he is anxious to respond.
§ Mr. Wigley
My point was that the access might not go through the curtilage of a house, but might be close to it. Surely the fact that a house that has enjoyed quiet in the past suddenly becomes part of a "honeypot" area will have an effect on its value. The question of compensation must then arise.
§ Mr. Meacher
There is provision for diversion of rights of way, and that applies particularly to "honeypot" areas. If there arc problems such as erosion of land or damage to tracks or paths, the Bill provides for closure, restrictions or diversions. I assure the right hon. Gentleman, who did not have the opportunity to sit on the Committee, that the Bill takes adequate account of such problems.
It is always useful to have officials nearby. I am informed—in answer to the point raised by the right hon. and learned Member for Sleaford and North Hykeham—that clauses 19 and 33 are relevant.
§ Mr. Meacher
No. I am going to make my case. I am sure that the hon. and learned Gentleman can return to his point later.
The statutory countryside bodies, the national park authorities and other local authorities will all have a part to play in helping to ensure that the new right is implemented and managed in ways that are sensitive to the needs of those who own or manage the land. Through positive management and promotion, including public 913 funding of the means of access and the appointment of wardens where necessary, any potential adverse impacts can be effectively minimised.
Although I would expect Conservative Members to focus on the perceived costs of the new right and understand why they have done so, I hope that they also recognise the potential benefits—not only the generation of extra income, but reduced costs for some owners. For example, landowners who have tolerated public access on a de facto basis—a number have done; so—will benefit from reduced occupiers' liability. Where the land is popular with walkers, the provision of wardens would be expected to help to reduce costs.
The hon. and learned Member for Harborough (Mr. Garnier), the right hon. Member for Caernarfon and the hon. Member for Somerton and Frome (Mr. Heath) raised the question of the risk of a decline in land values. Indeed, the hon. and learned Member for Harborough drew attention to the retention of powers for access orders under the National Parks and Access to the Countryside Act 1949, which provides for compensation. We are continuing with those access orders.
The point is that the 1949 Act provides for compensation in relation to specific sites or areas where landowners have refused to enter into access agreements. Access orders are therefore highly discriminatory and, as such, compensation is provided; but the Bill will apply to extensive areas of certain types of open country. Hence it does not discriminate between different owners. We therefore do not expect land values to be affected significantly.
What we propose is not without precedent. The Law of Property Act 1925 contained no provision for compensation when it introduced a right of access to the so-called urban commons, many of which are anything but urban. So far as I am aware, the absence of provision for compensation attracted little comment in the 1920s despite the creation of a much wider right of access, including for horse riders. The Act did not contain the same restrictions or provision for closures as this Bill. More recently, under the previous Government we had the example of the Dartmoor Commons Act 1985, which does not seem to have given rise to arguments about compensation.
I entirely accept that there is a balance to be struck between the public interest and private rights. We accept that there may be a minimal interference with the private property rights of some landowners, but that very limited interference has to be weighed in the balance with the right of millions of people to enjoy—without doing any harm or damage—extensive areas of open countryside. We believe that a fair balance has been struck, in accordance with our obligations under the European convention on human rights, without any requirement for compensation.
The Government's position is clear. We have gone to considerable lengths to avoid placing burdens on land managers and owners; some people may think that we have done a little too much to accommodate their concerns. I accept that the result is a right that is limited and constrained, but I believe that those who will benefit from the new right will accept those limitations. The 914 balance is difficult to strike, but I believe that we have got it right. For all those reasons, I ask that the new clause be withdrawn.
§ Mr. Garnier
I shall respond briefly to the points that have been raised. I thank my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), my hon. Friends the Members for Beaconsfield (Mr. Grieve) and for Vale of York (Miss McIntosh), and the hon. Member for Somerton and Frome (Mr. Heath) for their constructive contributions. As always, I found it interesting to listen to the Minister, but his response was not terribly helpful. Indeed, trying to engage him in an argument was rather like trying to nail jelly to the ceiling.
The Minister complained that my contribution to the debate was lengthy, legalistic and esoteric, but if he is not prepared to listen to legal arguments about the construction of laws in Parliament, I really do not know where we are. I appreciate that there are some members of his party who, having won the 1997 election by a massive majority, thought that it was an appalling constitutional device that we should debate laws at all. None the less, that is what we in the Opposition are here for, and I shall keep the Government up late at night if it is in the interests of the public to have their laws sensibly considered. [Interruption.] The babes want to go to bed, but they will have to wait a little longer.
The difference between general compensation and other compensation is not fully appreciated by the Minister. He relied on clause 33 for his arguments, but if he read it a little more carefully rather than depending on notes flying across the Bench from his parliamentary private secretary, he would see that clause 33(1) makes it clear that the agreements are discretionary, in that the access authority may pay compensation.
The right hon. Gentleman ought also, before he came to the Chamber, to have read section 8 of the Human Rights Act 1998, which provides a statutory right to damages for victims.
§ Mr. Hogg
The Minister referred us to clause 33, and it was good of him to do so, but he will have noted that it gives no right to compensation in respect of diminution in value; it covers only a range of out-of-pocket expenses. As my hon. and learned Friend says, it is dependent on there being an access agreement; furthermore, the payments are discretionary. Nothing in clause 33 enables a farmer or landowner who has paid out money to require anybody to reimburse him or her.
§ Mr. Garnier
Under section 8 of the Human Rights Act, the court may award damages to victims of behaviour that contravenes the convention. If the Government want to waste a lot of taxpayers' money on having people such as my right hon. and learned Friend and me, and indeed the Prime Minister's wife, appear in the courts of this land. I look forward to that, but taxpayers would think that their money was better spent elsewhere.
The Minister said that there may be benefits for some landowners under the access provisions, although I was not convinced by any of his examples. I appreciate that the arithmetic is against me this evening and that many overtired Government Members want to pop along to their 915 beds. For that reason, I shall ask permission to withdraw the new clause, but I warn that the Bill has yet to get to the other place, where it will receive proper and full scrutiny from Members of all parties and from Cross Benchers. If the Government think that, in the upper House, they can get away with the poverty of argument that they have attempted to advance this evening, they have another think—and many votes—coming. I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.
§ Further consideration adjourned.—[Mr. Clelland.]
§ Bill, as amended in the Standing Committee, to be further considered tomorrow.