HC Deb 13 June 2000 vol 351 cc832-40
Mr. Andrew Miller (Ellesmere Port and Neston)

I beg to move amendment No. 133, in page 41, line 9, leave out "or sailboard", and insert— 'other than a manually propelled vessel'.

Mr. Deputy Speaker

With this it will be convenient to discuss the following: Amendment No. 134, in page 41, line 9, at end insert— '(and for this purpose "vessel" includes a sailboard)'. Amendment No. 132, in clause 40, page 23, line 20, after "3", insert— 'or (Power to extend to waterways)'. New clause 17—Power to extend to waterways— '.—(1) The Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales) may by order amend the definition of "open country" in section 1(2) so as to include a reference to waterways or to waterways of any description. (2) An order under this section may modify the provisions of this Part in their application to waterways (whether or not within the definition of "open country" apart from the order).'.

Mr. Miller

This is the canoeists' amendment. While tabling it, I realised that there was a possibility that I may have to admit to having trespassed on many occasions. I thank my hon. Friend the Member for Harrow, West (Mr. Thomas) for bringing that to my attention.

In the next few minutes, I hope to convince the House that the law as currently drafted is an absurdity and in need of change. For my legal advice I am relying on the fifth edition of J. G. Riddall's "Introduction to Land Law", which appeared in 1993. Under the heading "Land Covered by Water" Riddall states: In the case of land covered by water, for example a river, the bed of the river belongs to the fee simple owner of the land through which the river passes. The landowner therefore owns the river bed, but not the water. Riddall goes on to say: The riparian owner has the exclusive right of navigation on water which overlies his land. That is an absurdity, which I shall illustrate later by reference to other countries. Riddall continues: The public will, however, acquire rights of navigation if … either the riparian owner dedicate the water as a public highway, or … if statutes confer such rights on the public. Tidal waters, however, are covered in a different way.

In an interesting article in the Canoeist in May, the Under-Secretary of State for the Environment, Transport and the Regions, my hon. Friend the Member for Sunderland, South (Mr. Mullin), explained in some detail why waterways will not be covered by the Bill. I accept that point and I know that my right hon. Friend the Minister for the Environment will make it when he responds. My hon. Friend the Under-Secretary relies entirely on the possibility of developing voluntary agreements. I agree with that method in principle, but, as I shall show in a moment, it has not been very successful, despite many efforts by the British Canoe Union. However, my hon. Friend goes on to say: We realize that this is only a start and there is more to do to ensure voluntary measures work. But I want to assure you— the reader— that we are determined to do all we can to ensure that the goal of greater access becomes a reality. I welcome that statement, and I put on record the thanks of the British Canoe Union for the time that my hon. Friend and his officials have given to the subject.

I shall set out the facts about access in England and Wales. There are some 13,000 miles of waterways, of which 376 rivers have voluntary access agreements. Canoeists can legitimately use other waterways such as rivers with common law or statutory rights of access; for example, substantial parts of the Severn and the Wye. That category includes some 1,100 miles of waterways. Canoeists can also use canals with licence, which make up another 1,400 miles. Some 10,000 miles are private or have disputed access. That position is not satisfactory.

I deal now with my local river, or perhaps, being a bi-riparian Member, I should say one of my local rivers. The weir on the Dee at Chester has access at certain times of the day, but in researching my remarks I found that, extraordinarily, I may well have unknowingly and regularly broken the law about 15 years ago. I used to go upstream from the weir, where, it transpires, there are no voluntary arrangements. Of course, I may have been within the law because of the tolerance of the local riparian owner.

The riparian owner on one side of a river might be playing ball, but what about the owner on the other side? There may be a mythical line down the centre of the river, with rights of access given by one landowner but not another. Who will enforce such a law? That is a crazy position in which to put people who are engaging in a perfectly harmless pursuit.

I point out to my right hon. Friend the Minister that the situation has existed for a long time. Landowners do not make many attempts to prosecute and a good number generally tolerate use of the waterways, which is welcome. However, the legal position in this country is absurd. To draw attention to that point, I shall briefly describe the position in other countries, which I shall deal with not according to priority but simply in alphabetical order.

Argentina has free sportive navigation on rivers, lakes and other waters. In Australia, canoeists are free to use all waterways. In Canada, there are, for the most part, no restrictions on canoes, although authorisation of the Minister may be required for a limited number of specific lakes, reservoirs and other waters. The citizens of China, which is not known for its tolerance, face no restriction on sailing in inland waters in canoes.

The position in France is interesting: there is a right of passage on all waterways classified as "state domain", comprising those formerly used commercially by boats or for floating or rafting logs. Other rivers are private, but the Administration, by virtue of a 1964 law, have a role to protect the generality of usage and have introduced common-sense rules so that owners, anglers and navigators can live together. My list continues, but in view of the time pressure on the House, I shall not complete it, except to point out that in the United States public use has been widely established.

Hon. Members who do not support the rights of canoeists cannot back up their argument by demonstrating that canoeists have damaged the environment or landowners' interests in any of the countries that I have mentioned.

Mr. Bercow

I am listening to the hon. Gentleman's disquisition with interest, and not least to his view on riparian rights. A few moments ago, he observed that a number of waterways admitted very little access, a position that he described as "not satisfactory". Will he confirm that, on the whole, those that do not admit access are the smaller waterways, and is he arguing that any size criterion should be applicable?

Mr. Miller

It is not only the smaller waterways that pose a problem of access. Of course, size needs to be taken into account. Alongside my cottage in Cheshire runs a tiny brook on which one would have a job to float a canoe, and clearly I am arguing for access not to little streams but to navigable waterways. The 376 waterways that have voluntary agreements include reasonably sized rivers such as the Allen, the Axe, the Dart, the Conwy, the Exe, the Nadder, the Ouse and the Trent.

Mr. Douglas Hogg (Sleaford and North Hykeham)

I, too, am listening carefully to the hon. Gentleman. Why does he make a distinction between, on the one hand, punts or canoes, which he contemplates being able to use waterways, and, on the other hand, sailing boats? What principle is he relying on in making that distinction?

Mr. Miller

I put forward no principle other than the fact that a small vessel paddled by one or two occupants does no discernible damage, is safely controlled and draws a small amount of water.

I end my remarks with the important point that any arrangements, whether voluntary or statutory—I have set out my position on that in the amendments—must be made without any disturbance to the reasonable rights of anglers.

Canoeing is a great sport, and I urge hon. Members of all ages who have not tried it to do so. I ask the House to adopt the principles set out in the amendments. I hope that my right hon. Friend the Minister will accept the amendments because they will give him the power to act if his voluntary approach does not work.

Mr. David Heath

When the hon. Member for Salisbury (Mr. Key) spoke to the amendment in his name, I suggested that I might be being extremely stupid because I did not understand it. I now realise that I was being extremely stupid, and I want to put that on record. His amendment was entirely in order, and I apologise to him.

I have considerable sympathy with the hon. Member for Ellesmere Port and Neston (Mr. Miller). There is a lack of access to waterways for canoeists and other users. However, I disagree that canoeists should have a right of access under the Bill. The difficulty lies in the point that the hon. Gentleman made at the end his speech and has to do with reconciling canoeists' interests with those of other users.

6.30 pm

I have some experience of that. The hon. Member for Ellesmere Port and Neston said that he was a bi-riparian Member. I think that I must be a poly-riparian Member. Sometimes, a large part of my constituency is covered in water, which is a problem. Is not the answer to use the new processes of consultation that will come into being as a result of the Bill, particularly the local access forums?

I note that the guidance to the forums gives as one of their intentions the development of recreation and access strategies that cater for a wide range of people. I hope that that includes the rights of people other than those who wish to have access by foot to open access country. I hope that the Government will have that sort of development of strategy in mind in setting up the bodies, which are so ill defined in the Bill at present.

Mr. Gareth R. Thomas (Harrow, West)

I support the remarks of my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller) and welcome the expression of sympathy from the hon. Member for Somerton and Frome (Mr. Heath).

It is clear that the success of the Bill thus far has thrown into stark relief the problem of access to water. It is certainly true, as my hon. Friend outlined, that our laws on the rights of navigation for unpowered craft on water are wholly out of step with international laws.

Bearing in mind the concerns that the hon. Member for Somerton and Frome made clear about the rights of users and other people who have a stake in waterways, may I throw in the example of France, where there is a right of passage on all waterways classified as being state domain? On other rivers that are private, thanks to a law of 1964 the French Government have a role to protect the generality of usage. They have introduced common sense rules, so that all who have a stake in waterways know where they stand and have proper access to waterways as they need it—they include anglers, whose rights are properly protected, as my hon. Friend said.

For many canoeists, the challenges lie on the rapidly moving water of upland rivers. That is where the exciting rapids and interesting drops are. Other canoeists prefer smaller lowland rivers, which are unsuitable for powered craft and perhaps appropriate for those who want to try the sport of canoeing, and for younger canoeists.

There are nearly 10,800 miles of such waters. As my hon. Friend made clear, canoeists have access to just 376 of those miles, which is equivalent to just 2.8 per cent. Given that the access agreements that do exist do not generally apply for 365 days a year, canoeists currently have access to less than 1 per cent. of the areas in the definition. Greater access to Britain's upland or smaller lowland water would avoid overuse of waters where there is currently access, and enable canoeists to use waterways that are much nearer to where they live.

Until now, Governments have argued that access to water, or delivering greater access to water, should be achieved through the voluntary approach. In 1983, the Sports Council drafted a statement of intent to try to promote the development of access agreements between landowners, canoeists and the British Canoe Union's representative body in particular. That statement of intent was not even signed because not all the organisations involved agreed to ratify it.

More recently, the British Canoe Union has drawn up a list of 20 target rivers, which it has discussed with the Country Landowners Association. The CLA deserves credit for its efforts to secure voluntary agreements on those 20 target rivers, but absolutely no progress has been made on delivering better access.

On Second Reading, my right hon. Friend the Minister for the Environment highlighted the failure of the voluntary approach to deliver better access to land. The problems are even greater in terms of access to water. Because of the unclear legal situation, where there are or have been rights for canoeists or voluntary access for canoeists, many of those access arrangements are coming under pressure.

I know that it is a probing amendment, but I hope that Ministers will look at the problem of access to water and offer hope to canoeists of much greater opportunities to canoe in Britain.

Mr. Hogg

I am pretty cautious about the measure. I wish to make just three brief observations.

First, I find it difficult to see what distinction there is between manually propelled vessels and others. Manually propelled vessels include punts, canoes and eights. I do not see what the distinction is between, for example, those and a sailing boat, a pedalo or a small motor boat. If it is in terms of the damage caused, I suppose that an eight causes as much damage as a small motor boat, not to mention the pedalo, which is foot propelled. We are seeing an example of a special interest group having its cause advanced without anyone paying much attention to the principle that underlies it.

Secondly, I have a strong preference for moving forward by way of consultation and voluntary agreements, rather than statute law. I am against the measure for that reason alone.

Thirdly, I am glad that hon. Members are so sensitive about the rights of anglers. So am I, but I am not sure what the difference of principle is between the rights of anglers and those of fox hunters. I strongly suggest that if Members are going to defend the rights of anglers, they will do well to defend the rights of fox hunters, too.

Mr. Meacher

The principle underlying the amendments—better access to waterways—is one that I wholeheartedly support. However, I am not convinced that it warrants a place in this Bill.

We thought hard about what access provisions to include in the Bill. Our first priority was to meet the clear demand for more access for walkers. We took advice from the Countryside Agency and from the Countryside Council for Wales on what other areas to include. Both recommended a more vigorous use of existing mechanisms, such as voluntary agreements, to extend access to land adjoining canals and waterways. We expect much to be achieved by a similar approach to access to water, although I hear what my hon. Friend the Member for Harrow, West (Mr. Thomas) says: it is one thing to reach an agreement, but it is another to get it delivered.

We have tabled amendments to the Bill, which we will come to later, which will retain on the statute book part V of the National Parks and Access to the Countryside Act 1949, which will allow for access agreements and orders to continue to be made on waterways and the waterside. Such agreements can make specific provision for access for users of canoes.

We recognise, however, that obtaining voluntary access to waterways can be far from straightforward. That is why, in March, the Under-Secretary of State for the Environment, Transport and the Regions, my hon. Friend the Member for Sunderland, South (Mr. Mullin), met the British Canoe Union to listen to its concerns. As a result of that discussion, at the end of last month officials in my Department held a meeting with a range of interest groups, including boaters, anglers and landowners. We are considering the conclusions of that meeting, but the general feeling of all present was that there were not enough hard facts on the availability of waterways, the scope for new access and the scale and nature of unmet demand. That points to the need for detailed, independent research into access to water. As I say, we are looking at that carefully and will make an announcement shortly.

In the meantime, we have already started promoting voluntary access in a number of areas. The Environment Agency has published a guide to developing voluntary agreements. The booklet, which was produced in conjunction with the angling and canoeing liaison group, provides information for all parties who are seeking to achieve new access for canoeists.

In addition, we have recently issued an updated code of practice on conservation, access and recreation for the Environment Agency and for water and sewerage companies. The code gives practical guidance to those bodies on their access and recreation duties, including the availability of water for recreational pursuits such as canoeing.

I realise that that is only a start. There is much more to do to ensure that voluntary measures work. However, I want to assure my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller) that we are determined to do all that we can to ensure that the goal of greater voluntary access to waterways does become a reality.

I hope that, on that basis, my hon. Friend will feel free to withdraw amendment No. 133.

Mr. Miller

I tell the hon. Member for Somerton and Frome (Mr. Heath) that I accept—as, I am sure, do all canoeists—that rights go with responsibilities.

My hon. Friend the Member for Harrow, West (Mr. Thomas) has considerable experience in the matter, and I hope that my right hon. Friend the Minister will take on board the points that he made.

I challenge the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) to try to row his eights up the type of rivers to which my hon. Friend referred. In relation to the top of the Dee, the right hon. and learned Gentleman's comment was a bit of a joke.

I welcome my right hon. Friend the Minister's extremely positive statement. The British Canoe Union is doing a lot of research and is very carefully monitoring the voluntary agreement. I commend to him the arrangements that seem to work in Northern Ireland, where—according to the Canoe Association of Northern Ireland—canoeists have no problems with access to waterways. Only one river in Northern Ireland, the River Bush, is not used by canoeists, and that is a research river for salmon breeding. The Canoe Association has agreed not to use the river except for a short time in the winter. The agreement seems to work and is perhaps the type of approach that his officials might like to examine.

I most sincerely thank my right hon. Friend for his very positive approach, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 200, in page 41, line 10, at end insert— '(cc) commits any criminal offence,'.

No. 201, in page 41, line 19, at end insert— '(hh) uses or has with him any metal detector,'.

No. 202, in page 41, line 20, leave out paragraph (i).

No. 203, in page 41, line 22, leave out paragraph (k).

No. 204, in page 41, line 27, leave out paragraph (m).

No. 205, in page 41, line 32, leave out paragraphs (p) and (q).

No. 206, in page 41, line 48, at beginning insert—

'(1) In paragraph 1(hh), "metal detector" means any device designed or adapted for detecting or locating any metal or mineral in the ground.

(2)'.

No. 207, in page 42, leave out lines 11 to 14.

No. 208, in page 42, line 22, leave out "access".

No. 209, in page 42, line 26, at end insert— '(aa) the variation of any direction given under this paragraph by a subsequent direction so given:. —[Mr. Meacher.]

Mr. Meacher

I beg to move amendment No. 210, in page 42, leave out lines 32 to 35 and insert— 'has the meaning given by section 20.'.

Mr. Deputy Speaker (Mr. Michael J. Martin)

With this it will be convenient to discuss Government amendments Nos. 150, 151, 154 to 164, 168 to 172 and 184.

Mr. Meacher

The amendments collectively give effect to the designation of the forestry commissioners as the relevant authority for any woodland that has been dedicated to public access in clause 16. We expect that the arrangements will encourage woodland and forestry owners voluntarily to enter into dedications, in the knowledge that, if they require directions under chapter II of the Bill, they will be dealing with an organisation that is familiar with the particular needs of woodland management and that is also responsible for licences and grants for woodland management.

For the sake of clarity, I should very briefly explain that amendments Nos. 210, 150 and 151 insert new provisions in chapter II and schedule 2 to amend the definition of "relevant authority". Amendments Nos. 154 and 155 enable the Countryside Council for Wales to give advice to the commissioners on the restriction or exclusion of access for the purposes of nature conservation under clause 24.

Amendments Nos. 156 to 164 provide for an appeal on, or reference from, a decision of the commissioners, under chapter II, to be heard by my right hon. Friend the Minister of Agriculture, Fisheries and Food.

Amendments Nos. 168 to 172 allow for the countryside bodies to give guidance to the commissioners on the exercise of their functions under chapter II. Finally, amendment No. 184 gives the commissioners the same powers of entry to land in the exercise of their functions, under chapter II, as are available to other relevant authorities.

The Forestry Commission will be examining the possibility of dedicating the national forest estate under the powers in clause 16. The commissioners would then be responsible for determining the restrictions and exclusions on the commission's own estate. I realise that that would entail the creation of a system of Chinese walls—as I think they are called—to ensure that there is a clear separation of duties as between Forest Enterprise, which is responsible for forest management, and the commission staff responsible for determining whether closures should be approved. That would mirror the approaches widely accepted for handling other consents.

6.45 pm
Mr. David Heath

Will the right hon. Gentleman just say whether the Forestry Commission has any duty whatever to promote recreational access or whether it will be given any such duty?

Mr. Meacher

It does. I am not sure whether the hon. Gentleman is putting emphasis on the word "promote", as opposed to "allow". There is certainly very substantial access to the Forestry Commission estate, and it is certainly my understanding that the Forestry Commission does promote access.

The amendments will enhance the attractiveness of the Bill's dedication element. That is certainly their intention. The Forestry Commission has long had responsibility for managing woodland in the public sector and for regulating the management or woodland in the private sector. The commission is well respected in that role, and the amendments merely represent a logical extension of the commission's responsibilities. I commend the amendments to the House.

Amendment agreed to.

Forward to