COUNTRYSIDE (SCOTLAND) BILL

HL Deb 20 July 1967 vol 285 cc378-438

3.55 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Hughes.)

On Question, Motion agreed to.

House in Committee accordingly.

[The BARONESS WOOTTON OF ABINGER in the Chair.]

Clause 1:

The Countryside Commission for Scotland

1.—

(4) The Commission shall be comprised of—

1. (a) persons appointed after consultation with such associations of local authorities as appear to the Secretary of State to represent local planning authorities;
2. (b) persons appointed after consultation with such organisations as appear to the Secretary of State to be representative of countryside interests; and
3. (c) such other persons as the Secretary of State may think fit.

THE DUKE OF ATHOLL

This is an extremely important clause because it sets up the Countryside Commission, and it also sets out in very broad terms what its functions and duties shall be. Subsection (2) says: In exercise of their functions the Commission shall have due regard to the need for the development of recreational and tourist facilities and for the balanced economic and social development of the countryside. I feel that it would be desirable to have some mention of the existing uses of the countryside, so that the Commission shall not be entirely unmindful of how the land is used at the moment. That is why I am moving this Amendment. I beg to move.

Amendment moved— Page 1, line 13, after ("Commission") insert ("while mindful of the existing uses of land").—(The Duke of Atholl.)

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES)

A very similar Amendment to this was discussed in another place on Report stage, and my honourable friend the Minister of State explained that the Government did not dissent from the principle of the Amendment then moved. He said, however, that it was considered that in drafting terms it was tautologous. The clause refers to the need for: the balanced economic and social development of the countryside", as the noble Duke has said. We maintain that if the Commission have regard to this—particularly to the word "balanced"—they cannot possibly fail to be mindful, as the Amendment would have them be, of the existing uses of land. In other words, we agree with the noble Duke, but consider that as the clause already means what he wants it to mean the Amendment is unnecessary.

THE DUKE OF ATHOLL

Of course, I fully accept what the noble Lord has said. I just thought it was a good idea to put it in, so that anyone reading the Bill would realise what was intended. But I have no intention of dividing the House on this matter, so I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE DUKE OF ATHOLL

This is an Amendment which is purely of a personal nature, in that I simply loathe the words "and social development". I think they make it sound as if the whole of Scotland were still inhabited by cavemen who drag their wives around by their hair. As the noble Lord opposite is well aware, that is not the case, so I should think it better to leave out those words. Also, I am not sure that the word "development" is right when what we want is progress. So in lieu of "and social development" I have suggested that we use the word "progress". I would also point out to the noble Lord—I know that Acts are never drafted in good English, which seems to be one of the penalties we pay for Parliamentary language—that the word "development" in line 14 makes rather ugly reading. I beg to move.

Amendment moved— Page 1, line 15, leave out ("and social development") and insert ("progress").—(The Duke of Atholl.)

LORD HUGHES

If we take this Amendment at its face value—and, really, what the noble Duke has done is to invite us to take it at its face value—it suggests that he is concerned only about the economic development (or, as he says, progress) of the countryside, and not at all concerned about the social development. He has made it quite clear that that is not what he intends at all. Our intention, in including the word "social", was to ensure that the Commission were mindful of the legitimate needs and desires of the people who live and work in the countryside, and it had its genesis in the first meeting which my right honourable friend the former Minister of State had with a wide cross-section of countryside interests to discuss the Bill in February of last year. It was a point which was then emphasised. The Government did not need it to be emphasised to them, because it was very much in their mind, but that conference made it perfectly clear to the Government that it was just as much in the minds of many other people as well.

If we did what the noble Duke suggests, it could create the impression that all that we are concerned about is the economic development of the area; and we suggest to the Committee that it is necessary, in order to accomplish the full objects of the Commission, that these words should remain. I hope that the noble Duke will allow his dislike of the words "social development" to be submerged for the next few minutes.

THE DUKE OF ATHOLL

I should like to thank the noble Lord, Lord Hughes, for his reply. Of course I am going to withdraw this Amendment, but I should like the noble Lord to consider, for the reasons I stated, the use of the word "progress" rather than "development". I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.2 p.m.

THE DUKE OF ATHOLL moved, in subsection (4), to insert at the beginning of paragraph (a) "not more than three". The noble Duke said: With the leave of the Committee, I shall speak to Amendment No. 4 at the same time. I regard these Amendments as rather more important in principle, although on reading the Bill more carefully, now that one has had greater time to do that, I fully realise that I should have put them down in a slightly different form. The way I put them down was based on the theory that the Commission were to be composed of 14 people willy-nilly, whereas it can, of course, be less than 14—and on the whole I think it should be less.

What I have suggested in Amendment No. 3 is that the people appointed in consultation with the local authorities should not be more than three, and in Amendment No. 4, that the people appointed as appearing to the Secretary of State to be representative of countryside interests should not be less than seven. Of course, I intended that approximately 20 to 25 per cent. of the Commission should be local authority people, and that at least 50 per cent. should be representative of the countryside interests, as they are the bodies who will be providing the raw material of this Bill—to wit, the countryside of Scotland. For this reason, I think they ought to have a large representation on the Commission.

I fully realise that, because of the way I have worded the Amendment, it will be impossible to work if, for instance, the Commission are to consist of only nine people or so. I can therefore assure the noble Lord opposite that I have no intention of pressing this Amendment, but I should like him to tell the Committee a little more about how the Government intend the Commission to be balanced between the three categories of people mentioned in subsection (4), what organisations they will be consulting as representing the countryside interests, and what kind of people the Secretary of State may think fit to appoint under paragraph (c) of subsection (4). I beg to move.

Amendment moved— Page 2, line 5, at beginning insert ("not more than three").—(The Duke of Atholl.)

THE EARL OF HADDINGTON

I should like to add my word of sympathy with the noble Duke's Amendment. I think the most important point about the composition of the Commission is that the members should be selected because of their knowledge of the countryside in all its aspects. They should not be townsmen if it is possible to avoid appointing them; and, as there are different kinds of countryside in Scotland, there should therefore be very different kinds of expert.

I do not know what the National Farmers' Union think of this. In a memorandum they sent round some weeks ago they very strongly advocated that the National Farmers' Union should be represented on this Commission. After all, a great deal of the land which is going to be used for access will be either abutting on or very close to farming land, and it is therefore very important, I think, that farmers should have some say in this matter.

LORD DRUMALBYN

I should like to support what the noble Earl has just said. I would go a little further, because I think that obviously those on the Commission should represent both those who live in the countryside and those who are going to enjoy the countryside, whether they live there or not. But where I think the Amendments of my noble friend the Duke of Atholl are along the right lines is that the Bill as a whole lays great stress on the perpetual contact that the Countryside Commission is expected to have with local authorities. It therefore follows that the representation of local authorities on the Countryside Commission does not have to be so strong as the representation of the other bodies with which it is not going to be in quite such continuous contact, if indeed it is going to be in nearly such continuous contact.

I dare say that the noble Lord will point out that it is going to be in continuous contact with everyone. That, of course, is impossible; and we know that under Clause 12 there is a special duty laid upon the Commission to have consultation with local planning authorities and to keep in continuous contact with them. I would only say that the noble Lord, Lord Hughes, will be aware that there is a feeling on this side of the Committee that the Bill is not quite so specific about the consultation that has to take place with other interests, and it would therefore be a good thing if those other interests were represented on the Commission as strongly as possible.

LORD HUGHES

There are two reasons why I am glad that the noble Duke has indicated that he does not intend to press these Amendments. In the first instance, we do not think it right that the Secretary of State's discretion in these appointments should be fettered in the way in which the Amendments propose. The second reason is that, while the Secretary of State has made it quite clear that it is his intention to appoint a rather large, unpaid body, the Bill has nevertheless been drafted in such a way as to make it possible for it to be a smaller, paid body; and if in future it should be found possible to change to that type of body, then of course an Amendment of this kind would make it impossible to have a body smaller than 10 in number—and theoretically more than 10 if the third leg is to have any meaning at all.

However, I should like to say that I think the noble Duke has his proportions pretty nearly right. I would not wish to guarantee that, if there were a body of 11 members, it would be 3, 7 and 1, but I do not think it would be very far away from those proportions. Perhaps I may remind your Lordships of what I said on Second Reading. I drew your Lordships' attention to the fact that in making appointments to the Commission it is my right honourable friend's intention to consult on as broad a basis as possible, so that the many organisations … who have interests in the countryside may feel reassured that their particular aspect of country life is not being overlooked and so that the Commission itself, when established, may be able to bring a widely informed view to bear on the determination of policy".—[OFFICIAL REPORT, 12/7/67, col. 1139.] I hope your Lordships will recognise that my right honourable friend is very conscious of the vital need to secure the right balance on the Commission, and that the noble Duke will therefore in due course feel that what he has said to-day bears a very close relationship to what eventually will emerge from my right honourable friend's decision.

THE DUKE OF ATHOLL

If it is of any comfort to the noble Lord, may I say that I personally agree with him that the Commission should be reasonably large—not necessarily 14—and largely unpaid. I think, with him and with the Secretary of State, that this will probably be the most satisfactory form of Commission. This is what led me to put my Amendment in this form. I realise its defects and therefore, with permission, I should like to withdraw it.

Amendment, by leave, withdrawn.

4.12 p.m.

BARONESS ELLIOT OF HARWOOD moved, in subsection (4)(b), after "organisations" to insert: "(including women's organisations)". The noble Baroness said: I rise to move Amendment No. 5; and I think the noble Lord is in no doubt as to my intentions. I have complained from time to time—and generally too late—that the composition of committees, commissions and inquiries in Scotland (and this applies to England, also, but I am speaking specifically about Scotland) does not include, in my opinion, a sufficient number of women. In our particular area on the Borders we have a Commission set up by the present Government to deal with the economic problems of the Border areas, which contains absolutely no women at all.

The Commission we are discussing today is to be one dealing with the whole of Scotland, and with the countryside of Scotland in particular. I am sure the noble Lord will agree with me that it helps people to lead happy lives in the countryside if they are members of happy families; if the wives are happy and satisfied to live in the country. If the Countryside Commission is going to be governed and directed, as are so many commissions, entirely by men, I think it is most unsatisfactory. I should therefore like to be sure that in selecting organisations to be represented on this Commission the Secretary of State does not omit the appropriate women's organisations. I can think of one or two obvious ones: the Scottish Women's Rural Institute, the National Farmers' Union, which has many women members, and the Church of Scotland Women's Guild in the Rural Areas which has active women workers. I have suggested that the words "including women's organisations" should appear in subsection (4)(b) in order that the interests, abilities and activities of women should be represented on this Commission. I beg to move.

Amendment moved— Page 2, line 9, after ("organisations") insert ("(including women's organisations)").— (Baroness Elliot of Harwood.)

LORD HUGHES

Although I am going to invite the noble Baroness not to press this Amendment, I can honestly say that I am happy it has been put down, for it gives me the opportunity of making clear the Government's attitude to this matter. We welcome the co-operation of women's organisations and look forward to the contributions they will make to the fulfilment of the aims and purposes of the Bill.

For two reasons, however, I feel that the Amendment is unnecessary and, indeed, undesirable. In law—and I hesitate to use these words—the greater includes the less; and the word "organisations" covers all organisations, including women's organisations—although I know, of course, that the noble Baroness probably thinks I should have said, "the lesser includes the great". Secondly, if we were to mention the women's organisations specifically we might appear to be discriminatory and restricted. This, as the noble Baroness knows, is a point of view which Governments frequently have to express. For instance, if one singles out a specific item for special mention, one draws away from the value of the general description.

We are particularly appreciative of the work of some of the organisations the noble Baroness mentioned. For example, I can say without the slightest hesitation that the S.W.R.I. will be one of the organisations which will be consulted. I am not certain that the N.F.U. would be quite happy at having itself described as potentially a women's organisation; but never mind. Some of the other organisations, perhaps all of them, will be consulted. What would be helpful to the noble Baroness is for me to say that I will make it quite clear to my right honourable friend that if this body emerges without a woman among its members the noble Baroness will make my life miserable.

BARONESS ELLIOT OF HARWOOD

I am grateful to the noble Lord for his reply. I expected that I should get a sympathetic answer. I know from the conversations that I have had with him that he is sympathetic to my point of view. I hope, having put the Amendment down and having drawn the attention of the Secretary of State to it, when the moment comes for the appointments to be made it will have served its purpose. I have pleasure in asking leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?

LORD DRUMALBYN

May I ask a question on one technical point? I pose it on logical grounds. It concerns subsection (7) of Clause 1, which debars a Member of Parliament from serving as Chairman of the Countryside Commission for Scotland. If your Lordships would care to look at Schedule 1, paragraph 3, you will see that it says: The Commission may pay to any of the members of the Commission such remuneration … as the Secretary of State may, with the approval of the Treasury, determine. It may be, if a Member of Parliament were put on the Commission, that the Secretary of State would not pay him anything; on the other hand, the noble Lord, Lord Hughes, has just said that one day there might be a smaller body consisting entirely of paid members. If you provide for all members to be paid, there does not seem to be any logical ground why you should except any particular member, and, contrariwise, if you have a Member of Parliament it does not seem proper that he should be paid. I wonder whether the noble Lord would comment on that subject. It seems, in the circumstances, that it probably would be better not to have a Member of Parliament on the body.

LORD HUGHES

I am not absolutely certain about this—I should like to have the opportunity to consult—but, speaking off the cuff, I should think that the last clause of the Bill, because it refers to the House of Commons Disqualification Act, really implies that Members of the House of Commons will not be members of this Commission. I remember when I was a member of a Regional Hospital Board, the members of which are not paid, the very fact that they could be entitled to reimbursement of their travelling expenses and also, I think, payment in lieu of loss of remuneration, disqualified a Member of the House of Commons from being a member of that Board. I think the same position, therefore, applies here. I should be surprised if any Member of the House of Commons were to be so enthusiastic about membership of the Countryside Commission that he would give up his membership of another place in order to become a theoretically unpaid member of the Countryside Commission.

LORD DRUMALBYN

With respect, I think the noble Lord is thinking of the position before the 1957 Act was passed. In those days it would have been an office of profit under the Crown, and it would, for that reason, have been impossible for a Member of Parliament to hold the office, whether paid or not. But the present Act proceeds simply by naming those offices which are closed to Members of Parliament.

LORD HUGHES

Perhaps the noble Lord will give me the opportunity to look into this matter. We have ample time before the next stage of the Bill. If we make slow progress, there may be ample time before the conclusion of this Committee stage to inform him on this point.

Clause 1 agreed to.

Clause 2 [The Countryside]

On Question, Whether Clause 2 shall stand part of the Bill?

4.20 p.m.

THE DUKE OF ATHOLL

I should like to ask one brief question on this clause. In the transitional stage, before the countryside is defined by maps, the biggest town we can have will be one with fewer than 5,000 inhabitants. When the maps are drawn up, in the event of it being found—and I do not think that it is entirely impossible—that there are towns, rural in character, with a certain beauty that needs preserving, which happen to have over 5,000 inhabitants, will it be possible to include them in the countryside, or must the countryside consist only of areas where the inhabitants are fewer than is included in the transitional stage?

LORD HUGHES

My impression would be that it should be possible to do as the noble Duke has asked. In the absence of maps, this is a rough and ready way of determining what is the countryside, and it was felt that by fixing the figure of towns with a population of 5,000 or less there would be no difficulty. But once we get down to the mapping it would be my impression that the limit of 5,000 would not be binding in relation to the preparation of these maps.

Clause 2 agreed to.

Clause 3:

Duties of the Commission

3. The Commission shall have the following duties— (a) to keep under review all matters relating to the provision, development and improvement of facilities for the enjoyment of the countryside, the conservation and enhancement of its natural beauty and amenity, and the need to secure public access to the countryside for the purposes of open-air recreation; and to consult with such local planning authorities and other bodies as appear to the Commission to have an interest in those matters; (e) to advise the Secretary of State or any other Minister or any public body on such matters relating to the functions of the Commission as he or they may refer to the Commission or as the Commission may think fit.

4.22 p.m.

BARONESS ELLIOT OF HARWOOD moved, in subsection (3)(a), after "bodies" to insert "including public and other authorities in England". The noble Baroness said: I rise to move this Amendment which was put down originally by my noble friend Lord Inglewood and is designed to include in consultations those authorities that are joined with the Scottish authorities where the Borders meet. The two areas of which I am thinking in particular are the line of the Solway and the line of the Tweed. In my opinion it would be a great mistake if, in respect of consultations about functions, consideration was not given to those authorities which although technically in England adjoin the Scottish areas. Even though the Minister may think, as I believe he does, that consultation takes place between the Scottish and English authorities, I am told by my noble friend Lord Inglewood, who lives on the Solway side, that in respect of planning consultation does not take place. Very often planning is carried out on one side and the other side has not the slightest idea of what is being planned. Therefore I think that if both sides of a given area are involved we shall be quite sure that both sides are consulted. I beg to move.

Amendment moved— Page 4, line 8, after ("bodies") insert ("including public and other authorities in England").—(Baroness Elliot of Harwood.)

LORD HUGHES

Strangely enough, the acceptance of the Amendment would have the opposite effect to that intended by the noble Lord, Lord Inglewood, who was originally to have moved the Amendment. I am in complete sympathy with what he wants to do, and I am certain that what I have to say will reassure him. I am advised that the Amendment is not required to enable us to achieve his objective, and the clause as drafted permits the Commission to consult any other body which appears to them to have an interest in the matter to which subsection (3) refers. It is hardly surprising that the advice which I have given goes as far as this. It makes it quite possible to consult bodies whether in Scotland, England, America, Australia or anywhere else.

If the Amendment were accepted, it could be argued that the Commission were restricted to consulting bodies in Scotland and England only. We should not be happy about that because, of course, much useful work of this kind is being performed in other parts of the world, and we should wish the Commission to be quite free to consult any bodies anywhere if their advice could be helpful. Having said that, may I also say we accept that there must be particular consultation between England and Scotland on this matter, and I am certain that the arrangements which will be made in due course will ensure that consultation between England and Scotland in these matters is particularly close and continuous.

BARONESS ELLIOT OF HARWOOD

I thank the noble Lord very much for his answer. I am much reassured by it. I did not realise that one might stray as far away as other continents. The consultations about which I am concerned are those between neighbouring authorities, North and South and East and West. If we may be perfectly sure that people do consult with their next door neighbours, I shall be happy to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.25 p.m.

THE DUKE OF ATHOLL moved, in paragraph (e) to leave out "functions of the Commission" and insert "countryside". The noble Duke said: This is the first of my Amendments designed to broaden the scope of the Commission so far as they are concerned with advice about what public bodies are doing. As I read this Bill—no doubt the noble Lord, Lord Hughes, will tell me I am wrong—the Commission can only advise the Secretary of State or any other Minister on matters which refer to the functions of the Committee, or any other public bodies. So presumably, if a public body referred a particular problem to the Commission they could advise even if, technically, the matter was outside the scope of the Commission.

I believe that the functions of the Commission do not officially include giving planning advice to public bodies where they are going to carry out development on their own land. I should have thought that the Commission ought to be empowered to advise in these circumstances, whether or not their advice was sought. Therefore, I have put down an Amendment that we should omit the words "functions of the Commission", and say they should give advice on any matter relating to the countryside; remembering that throughout this Bill the "countryside" refers to the countryside as defined in Clause 2. Not only would this get over the particular problem of undesirable development by public bodies on their own land, but I think it makes this subsection slightly easier to understand. I beg to move.

Amendment moved— Page 4, line 22, leave out ("functions of the Commission") and insert ("countryside").—(The Duke of Atholl.)

LORD HUGHES

I do not think that this Amendment is strictly necessary, but I accept that it is logical that this particular part of the Bill should refer to the countryside as a whole. In those circumstances, I am prepared to accept the Amendment.

THE DUKE OF ATHOLL

I should like to thank the noble Lord very much.

On Question, Amendment agreed to.

On Question, Whether Clause 3, as amended, shall stand part of the Bill?

LORD DRUMALBYN

May I ask the noble Lord, Lord Hughes, one question which relates to paragraph (b)? The Commission is to have the duty to encourage, assist, concert or promote the implementation … I want to be quite sure about this. Many Acts of Parliament, and indeed this clause, lay duties to advise, and I am not clear why there is no duty to advise in paragraph (b). It may be included in the word "assist", but if it is not I should have thought it might be desirable to add the word "advise".

LORD HUGHES

I think the words "encourage" and "assist" will include the word "advise", but if it should prove that because of Parliamentary usage they do not, and it is necessary to add the word "advise", then it will be done at the next stage.

Clause 3, as amended, agreed to.

Clause 4 [Powers of the Commission]:

THE DUKE OF ATHOLL

I have put down this Amendment purely to discover whether the Commission have the power to help other bodies to carry out campaigns which the Commission think useful. I am thinking particularly of the "Keep Britain Tidy" campaign. If the Commission were in existence at the present time, would they be able to give a grant towards the "Keep Britain Tidy" campaign? If the noble Lord, Lord Hughes, says, "Yes", I shall be entirely satisfied. If he says, "No", I think that he might accept this Amendment. I beg to move.

Amendment moved— Page 5, line 7, at end insert ("and to make contributions towards the expenses of any other body engaged in such activities").—(The Duke of Atholl.)

LORD HUGHES

I hope that the noble Duke will forgive me if I do not answer him in as few words as he wants me to do. The position is that, so far as persons other than public bodies are concerned, Clause 7 gives adequate power to the Commission to give grants for any project to educate or inform people how to behave in the countryside. Your Lordships will have observed that we have not made any provision for the Commission to give grants or to make contributions to public bodies. We consider that public bodies ought to be able to stand on their own feet as regards finance. But it should also be noted that the clause as drafted permits the Commission to join with another public body in the type of activity or project we are discussing and then they could pay their share of the cost.

In other words, we are all for the Commission contributing when they are directly involved in the project, but for projects in which they are not playing an active part, we do not think it right that they should be able to make financial contributions to other public bodies which have their own direct channels of assistance from the Exchequer. I think therefore that the Bill as drafted meets satisfactorily the different circumstances which can arise, and I hope the noble Duke will agree. The "Keep Britain Tidy" movement is a private body, and therefore the noble Duke can take it that it would not be excluded.

THE DUKE OF ATHOLL

I am entirely satisfied and beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 agreed to.

Clause 6 [Powers of Commission in relation to development projects or schemes]:

4.32 p.m.

THE DUKE OF ATHOLL moved, after subsection (3), to insert: ( ) The powers conferred by paragraph (h) of subsection (1) above shall not be exercised if the Commission are already carrying on a similar business or undertaking elsewhere.

The noble Duke said: Clause 6 gives to the Commission various powers in relation to development projects or schemes. In subsection (1)(h) the Commission are empowered, with the approval of the Secretary of State, to set up or carry on almost any form of business or undertaking. The Minister of State told another place that the Commission would get approval from the Secretary of State to set up only what he called prototype developments and that they would not be allowed to set up, say, a chain of hotels throughout Scotland. I have tried to draft an Amendment to make it perfectly clear that all the Commission may do under paragraph (h) is to undertake prototype developments. This will have the advantage of bringing the Bill into line with what I gather is the intention of the Government. I beg to move.

Amendment moved— Page 7, line 3, at end insert the said subsection.—(The Duke of Atholl.)

LORD HUGHES

I cannot accept the noble Duke's Amendment simply because it is not necessary to do this in order to bring the clause into line with what the Government want. We have to read Clauses 5 and 6 together, because the detailed powers set out in Clause 6 are limited by the functions conferred by Clause 5 and cannot exceed them. The type of project which may be carried out by the Commission is explained by Clause 5(1)(a), and this goes a long way towards meeting the purpose of the Amendment. As the Minister of State said in another place: This subsection restricts the Commission to new projects or those which it has not tried in areas of a similar kind". For example, if the Countryside Commission had promoted a ski-lift in the Cairngorms they would have been able to operate it, but they would not have been able to promote and operate additional ski-lifts in the same area. It is possible that a ski-lift might be wanted in another area where the problem was totally different and where no one was interested and prepared to try it out. If the Amendment were accepted, it would be impossible for the Commission to do this. While we want the Commission to be kept to prototypes and not to go setting up chains of hotels such as the noble Duke suggested, this Amendment could prevent them from carrying out even prototype activities. I hope that the noble Duke will accept that the Bill as drafted will work in the way in which he would wish it to work if this Amendment were put in.

THE DUKE OF ATHOLL

I thank the noble Lord, Lord Hughes, for that reply. I fully appreciate the deficiency in my Amendment. I think it would be a disaster if the Countryside Commission were not allowed to set up ski-lifts elsewhere, if they thought it necessary, simply because they already had one. Needless to say, I was not thinking of that sort of development when I put down my Amendment. It rather worries me that if they have one ski-lift under Clause 5 they will not be able to set up another one in the same place, and it might be desirable, but immensely uneconomical, for someone to set up another because of the crowds going to ski. I rather think that we should try to loosen Clause 5 so that it would enable the Commission to do this if they felt it necessary. As I have indicated, I will withdraw this Amendment and perhaps the noble Lord will think over what I have said before the next stage.

LORD HUGHES

It was not my intention to over-convince the noble Duke.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clauses 7 and 8 agreed to.

Clause 9, [Areas of special planning control]:

THE DUKE OF ATHOLL moved, after subsection (2) to insert: ( ) Public bodies shall submit to the local planning authority for planning permission any development or any class of development which they propose undertaking in an area of special planning control.

The noble Duke said: This is my effort at the Amendment I foreshadowed in my speech on Second Reading, when I said that I thought the negative powers of the Commission were not great enough to enable them to stop public bodies from undertaking undesirable developments in the countryside. I appreciate that it is probably difficult to stop public bodies from carrying out any undesirable developments in the countryside in Scotland, but I think that in these areas of special planning control, which are created under Clause 9 because of some natural feature which is particularly beautiful, or interesting, or of scientific importance, public bodies should be required to consult the Countryside Commission before undertaking any development; and, what is more, the approval of the Commission should be required. In order to achieve this, my Amendment provides that a public body must submit any development to the local planning authority. Clause 9 already says that the local planning authority must consult with the Commission before giving agreement to any form of development. I beg to move.

Amendment moved— Page 8, line 10, at end insert the said subsections.—(The Duke of Atholl.)

LORD BURTON

I should like to support the noble Duke on this Amendment. Not far from Inverness a golf course was set up on some of the best agricultural land in the country. I understand that this never went before the local planning authority, because the ground already belonged to the Secretary of State. This is the sort of thing which I think should be stopped. It might have been much more serious in a place of scenic beauty.

LORD LEATHERLAND

This is a Scottish field day in your Lordships' House. I am not a Scot, and I tread with some trepidation across the Border. But I shall watch with close attention the answer that my noble friend on the Front Bench gives to this suggested Amendment, because this is precisely the situation with which we are confronted in Essex, where the Government are proposing to take away from my County Council the local planning powers which they now exercise and to vest those powers in a public Board, the Air Force Authority. So that if my noble friend is going to concede this Amendment to the noble Duke, then I think that we in Essex may have some claim on his fellow Minister when we say that we, the County Council, want to retain our complete planning powers in the area and not hand them over to an outside authority.

LORD HUGHES

I am afraid I cannot give any joy to my noble friend or the noble Duke. This Amendment is one which the Government feel would impose far too onerous a requirement on public bodies. Most of them are given certain freedom under the Planning Acts in relation particularly to minor developments, and to certain developments relevant to their statutory purposes. Under the General Development Order these bodies do not need to apply for planning permission for such developments, because it is granted to them generally by the Order, which defines a number of classes of "permitted development".

The Amendment would mean that these bodies would need to go to the local planning authority even about their otherwise "permitted development" proposals in the designated areas. The noble Duke has not, however, proposed that private developers should be under a similar obligation, and these also have considerable freedom under the Order—for example, certain farm buildings are permitted development, as also are certain alterations and additions to dwelling-houses. I cannot see why public bodies should be restricted in the manner proposed, particularly as powers exist under the Planning Acts (as distinct from those in this Bill) which could be used, if necessary, to fortify the powers given by Clause 9 in areas of special control by restricting permitted development therein.

I appreciate, however, from what the noble Duke said on Second Reading, that it is not minor developments in which he is interested; he is concerned to prevent something like a "Cow Green" or an "Abingdon gas works" from happening in Scotland. I can assure him that this Amendment is not necessary to achieve this object. Cow Green was a special case, and the details of it—which have already fully engaged your Lordships' attention—are not really relevant to the present issue. Suffice it to say that under this Bill the Countryside Commission would already have a very effective voice which they could make heard if similar circumstances were to arise in Scotland. As regards Abingdon gas works, surely the successful outcome of this case, from the amenity point of view, is proof positive that statutory undertakers like the Gas Board are subject to planning permission for their major works; and that is how this case was taken up—and this applies generally, not only to areas of special planning control. Adequate arrangements already exist therefore under the Planning Acts for the Secretary of State to supervise these major developments of the statutory undertakers—and also under administrative procedures to oversee proposed developments from other Government Departments—and these can be supplemented, if necessary, in areas of special planning control without the insertion of this Amendment. I hope that with these assurances the noble Duke will agree to withdraw his Amendment, and that he will feel that the point of major importance to which he referred on Second Reading is taken care of, and that this Amendment is not necessarily in order to prevent these major disasters in Scotland.

4.46 p.m.

THE DUKE OF ATHOLL

I am entirely unconvinced by the noble Lord, Lord Hughes. The only thing that saddens me is that the noble Baroness, Lady Wootton of Abinger, is in the Chair and therefore cannot speak. I feel confident that she would support me. The National Parks Commission did their best to stop Cow Green, and, if I may say so, they had absolutely no success. In the case of the Abingdon gas works, the Gas Board, three weeks earlier, sent a letter to a reporter of the local newspaper in which they said they proposed to build this gasometer 168 feet high on land which they already owned in Abingdon. The reporter of the newspaper rang up the chairman of the local planning authority and the chairman of the Abingdon Town Council, neither of whom had heard any word about it. Therefore, the Gas Board's idea of consultation was to announce what they were going to do, and to say that they were going to start in three weeks. That is not my idea of consultation.

The only reason why they were prevented from doing what they proposed was that there was such an outcry, for which the credit goes to certain newspapers—in some of which I hasten to declare an interest; but there were others. As a result, the Gas Board have been bribed (I can put it no other way), by the local planning authority's agreeing to pay a large part of the difference, to put in what I think are called high-pressure gasometers, which are smaller. But had not sufficient indignation been aroused—and this was a particularly glaring example—nothing would have happened, and they would have been allowed to get away with it.

I fully appreciate what the noble Lord said about private developers. I have never understood why a large agricultural building needs planning permission and yet a small agricultural building, which is quite ugly, does not. I cannot see the logic of this. There ought to be some method laid down whereby an ugly building can be objected to even if it is an agricultural building. We are getting short of attractive places, places of scientific interest and so on, and we should not risk them in this way. I am very surprised that the noble Lord has not been prepared to hold out some hope that at any rate the sort of cases of which I have given examples can be brought within the purview of the Countryside Commission. Frankly, I am entirely unconvinced by his statement that, so far as the Gas Board were concerned in the case of Abingdon, they would have had to consult, because I know that they had no intention of consulting. I should like the noble Lord to comment on this, and hold out to me some ray of hope that we may be able to achieve something before the next stage of the Bill.

LORD DRUMALBYN

Before the noble Lord replies, perhaps I may put this point to him. I think that what my noble friend, and the whole Committee, desire is that where areas are to be given a special planninig control, with a unified supervision of the whole area, then whatever applies to the private sector in the way of development should apply also to the public sector. In other words, if all applications for planning permission in the private sector can be called in by the Secretary of State then he should automatically have the same kind of oversight over the public sector without taking any special measures to ensure it. It should all be in the Bill. It should not be necessary to invoke the Planning Acts, if the Secretary of State thinks it necessary to do so. I think this is what my noble friend has in mind, and I should have thought that it was right.

LORD HUGHES

Yes, But we have to take account of the different administrative machines which exist in the two countries. I speak without knowledge of how close is the connection of Government Departments on this side of the Border, but we have to remember that the Secretary of State is head of a great many Departments. I know that the Gas Board is one of the few cases which does not come under his direct control—because the Gas Board comes under the Minister of Fuel and Power—whereas the Electricity Boards come directly under the Secretary of State, but no one knows better than the noble Lord, Lord Drumalbyn, that it is very difficult for the Gas Board to be doing much of any major importance without the Secretary of State's being aware of it. So the circumstances to which the noble Duke referred just could not happen in Scotland.

THE DUKE OF ATHOLL

Obviously there is no point in pursuing this argument now. We can pursue it again at a later stage. But I must say that I am supremely unconvinced by the answer of the noble Lord. Having said that, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 [Provision for public access to open country]:

4.51 p.m.

LORD DRUMALBYN moved, in subsection (2), to leave out all words after "any land", down to "consist", and insert "consisting". The noble Lord said: We now come on to Part II, which deals with access to the open country and which is perhaps the most important Part of the Bill. This first Amendment of mine has to do with the interpretation of the words "open country". Subsection (2) says: In this Part of this Act 'open country' means any land appearing to the authority with whom an access agreement is made or to the authority by whom an access order is made or by whom the land is acquired, as the case may be, to consist wholly or predominantly of … and it goes on to give a definition of the term "open country" which closely resembles that of livestock rearing areas.

The point I have in mind is this. Here, again, what one wants is a uniform interpretation of the phrase "open country". I have in mind that uniformity of interpretation of the "livestock rearing area" definition is assured because Her Majesty's inspectors, the Department of Agriculture inspectors, are empowered to decide what is a livestock rearing area, with a view to giving grants of various kinds. I should have thought it was highly desirable to have the same kind of unified interpretation here.

The Amendment I have put down—which would be to leave out the words "appearing to the authority", and so on, and simply to say "consisting wholly or predominantly"—is very much in line with the "livestock rearing area" definition; and I should have thought that this would be the right way to do it. But it would not be the only way. It would equally be possible to say, "appearing to the Commission to be open country". That also would ensure uniformity of interpretation. If the Amendment I am proposing were accepted, in the end you would get, I suppose, an appeal to the courts, or something of that kind, if it was thought that the local authority was interpreting the area to be open country when it was not really open country, as generally interpreted, at all. The purpose of this Amendment is to draw attention to the need for this uniform interpretation.

I would point out to the noble Lord that while the Commission are bound, under Clause 12 and elsewhere, to consult with local authorities, local planning authorities are not obliged to consult with the Commission. There seems to be nothing to prevent them from putting their own interpretation without asking the Commission; although I would agree that the Commission are always empowered to give advice to the local planning authority. But the local planning authority may have taken their decision before the advice arrives, or without seeking the advice. The purpose of this Amendment is purely to secure uniformity, and I hope that the noble Lord will be able to suggest some way in which that can be done, rather than leaving it entirely to the discretion of the local planning authority.

Amendment moved— Page 9, line 15, leave out from beginning to end of line 17, and insert ("consisting').—(Lord Drumalbyn.)

LORD BALERNO

I should like to support my noble friend on this point, both on uniformity and, more so, on clarity for the ordinary man who may be having to read this provision in future.

LORD HUGHES

I am sorry, but, although I have sympathy with what the noble Lord, Lord Drumalbyn, has said, I cannot advise your Lordships to accept the Amendment. The words which the Amendment seeks to delete have really worked well in practice, because they are taken from the National Parks and Access to the Countryside Act 1949, and, so far as I am advised, they have not given rise to any difficulty in England and Wales. In practice, given reasonable people—landowners and local planning authorities alike—I find it very difficult to foresee any circumstances in which there would be dispute as to what comprises "open country" as defined, but, if there were a dispute, I think it is right that discretion to make the initial assessment of what is, or is not, open country should lie with the local authority. Otherwise, if we accept the noble Lord's Amendment, action, at worst, could be completely stultified by lack of agreement; or, at best, could be delayed while reference, as he has indicated, could be made to the courts for a decision.

I think your Lordships will appreciate, in any case, that the circumstances in which this point would be of any significance would be rare—in fact, only in the case of access orders. Where access agreements are concerned there will obviously be no dispute between the parties, otherwise the agreement would not be made. In the case of access orders, I would remind your Lordships that these are subject to confirmation by the Secretary of State, with all the normal safeguards for people affected to have their objections heard. If it emerged during this statutory process that there was a dispute as to whether the land concerned was open country or not, then this is something which could be impartially inquired into, and the ultimate decision taken would rest with the Secretary of State. Thus, the final discretion does not lie with the local planning authority. In so far, therefore, as it is necessary in matters of disputed types of country to have uniformity, this will be achieved through the Secretary of State; and this, I would suggest, from past experience, is much more likely to be quickly and more cheaply accomplished than by reference to the courts, which would be the position if there were no discretion given to the local authority in the first place.

LORD DRUMALBYN

I am obliged to the noble Lord for his reply, but I am a little surprised to hear from him that in this matter the final decision as to whether any particular piece of country is open country or not does not lie with the authority, because the words are, quite clearly, "it must be land that appears to the authority to consist …". Nobody can override that. The Secretary of State may decide to give a direction, but it must still be in regard to land which appears to the local authority to be open country. I hope that the noble Lord will consider this matter further, because I am not absolutely satisfied that he is right on this point.

LORD HUGHES

The advice I have been given is that this matter arises only in the case of access orders. Because in the case of access agreements, if there is a dispute as to whether land is open country, an agreement will not be made in the first instance. Therefore, the question arises only in the case of an order, and the procedure gives full rights to the person who does not think the local authority is right. If a person thinks that the local authority is wrong in deciding it is open country, this will be one of the grounds upon which to object. The Secretary of State will take that into consideration, and if the Secretary of State is impressed by the arguments he will not confirm the order, or he will grant the appeal, whichever is the appropriate form of wording. In, these circumstances, so far as that particular access order is concerned, it does not matter then what the local authority's view as to open country is, or is not. If a man has won his appeal by convincing the Secretary of State that the local authority is wrong, he does not need to worry whether the local authority is still of the same opinion or not.

LORD DRUMALBYN

I think where I differ from the noble Lord—and one does not want just to chop logic on this—is that the whole definition is "access for open-air recreation to open country", and then "open country" is defined. I think in his reply the noble Lord has been looking at this purely from the point of view of the landlord, if I may say so, and not from the point of view of the public. I shall not pursue this point, but perhaps he will consult further with his advisers. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.0 p.m.

VISCOUNT MASSEREENE AND FERRARD moved, in subsection (2), to leave out "wholly or predominantly of mountain, moor, heath, hill, woodland", and insert: of land not capable of supporting more than one ewe to five acres or unenclosed woodland or".

The noble Viscount said: I have put down this Amendment because on Second Reading I expressed great dissatisfaction with the definition of "open country" that is contained in the Bill. If I may just read the definition, it is to consist wholly or predominantly of mountain, moor, heath, hill, woodland, cliff or foreshore … The word to which I chiefly object is "predominantly", because that is not really a clear enough definition, and I am quite sure that if that word is left in the clause it will lead to a great deal of argument. It is far too indecisive.

I consider that my Amendment helps greatly to clarify the situation, because, after all, what do we mean by "open country"? We really mean rough hill grazing, and if we take my definition, of land not capable of supporting more than one ewe to five acres or unenclosed woodland or we there have a perfectly clear definition of rough grazing—in other words, of open country. This definition also has the advantage of taking the enclosed land and what we call the "in-by" land of the livestock rearing areas out of "open country". In effect, it takes the "in-by" land of the livestock rearing areas out of the definition of "open country" because, as the Bill is at present drafted (although, strictly speaking, this comes into Clause 11) the livestock rearing lands are not "excepted lands". They come under the definition of "open country".

To include all the livestock rearing areas in the definition of "open country" I am quite sure would mean endless friction, because some of these livestock rearing areas are extremely heavily stocked. The Livestock Rearing Act of 1951 was, in my view, much too wide in its definition, because it included enclosed land and "in-by" land and all hill land, which of course is too all-embracing. If we have this broad definition of "open country" in the Bill, with the word "predominantly", we shall have a great deal of trouble with farmers. I pointed out on the Second Reading that there will probably be accidents, with hikers being chased by cows with calves; gates will be left open and there will be great trouble at lambing time. The farmers' task in the heavily concentrated livestock rearing areas is going to be made that much more difficult.

The other point that my Amendment brings out is the subject of woodlands. In the Amendment I have referred to "unenclosed woodland". Of course I am thinking chiefly of young plantations, and if the public, under an access order, is going to have access to young plantations, apart from all other woodlands, the disturbance to wild life and, in particular, the fire hazard are going to be quite uncontrollable. I quite agree that under Clause 19 an order can be made in the event of very dry weather, forbidding public access to certain woodlands. However, I do not consider that that is really satisfactory, because by the time the order is made and the public are aware of that order there could be a fire. The average mature woodland is of course unenclosed, so that is not affected, but I should feel far happier if enclosed woodlands were not included in "open country". I really think that is quite a feasible request to make. But the most important point is that I should like to have the definition of "open country" classed as "rough grazing hill country", and this I consider my Amendment would do. I beg to move.

Amendment moved— Page 9, line 18, leave out from beginning to ("cliff") in line 19 and insert the said new words.—(Viscount Massereene and Ferrard.)

LORD HUGHES

There was a lengthy discussion in another place about what categories of access land should be automatically excepted, and my honourable friend the Minister of State said that the Government were willing to look at the matter again. At the same time, I think it is correct to say that he warned against drafting the Statute so restrictively that we should prevent ourselves from doing things which individually, as farmers, as landowners, as Secretary of State, or—I might add—as local planning authority members, we should be willing and perhaps even eager to do ourselves. There was a suggestion that all agricultural land except hill farming land should be excepted. This idea was, however, rejected—rightly in my view—because it would have meant that access arrangements could have been made only to the higher land. It is true that this would have enabled us to satisfy some part of the need for public access to open country, but there are areas where it would have unduly restricted the possibilities. We settled on livestock rearing land, not because there is any likelihood of access being sought to anything like all of it but because it seemed to us to comprehend all the types of agricultural land to which access could reasonably be sought.

The noble Viscount knows, I am sure, that the words we have used—"mountain, moor, heath, and cliff" were in both the Access to Mountains Act 1939 and the National Parks Act 1949. The only alteration that we have made, so far as I know, is that we have altered the English word "down" to "hill".

The Amendment would be much too restrictive, much more restrictive even than "hill farming land". For example, it introduces difficulties of interpretation. In assessing the sheep-carrying capacity of land are we, for instance, to take the farm as a unit, or the whole area over which access is sought, or should we have to assess it acre by acre? I am advised that if we used the farm as the basis, virtually all of the Borders and South-West Scotland would be out, and we should be left only with remote or high-lying areas like the Cairngorms and parts of Argyll, Inverness-shire, Wester Ross, Sutherland and Caithness. Secondly, there would be the problem of assessing the carrying potential of the land, and, as your Lordships are well aware, this can vary according to methods and standards of management. Not only that, but sheep are moved in the winter. When would the assessment be made?

The Amendment would also insert the word "unenclosed" before "woodland". We should all, I think, accept that access to young plantations does not make sense in practical terms, as anyone who has tried to make his way through a young conifer plantation knows. But this can, I think, be left to the good sense of the local planning authority and the occupier. The noble Viscount will, I am sure, have noted the provisions of Clause 15—I think he referred to them—which provide recourse to the Secretary of State for an occupier who considers that a local planning authority is being unreasonable in a matter of this nature. Mature woods may be fenced, or they may not be. Practice varies on different estates, and it may sometimes be completely fortuitous whether they are enclosed or not. The word "unenclosed" is not therefore helpful in this context, as was recognised after full discussion in another place.

I am grateful to the noble Viscount, nevertheless, for having given me this opportunity to explain why we drafted the Bill as we have done. We have used words which we think describe the "open country" to which, prima facie, free public access might reasonably be negotiated. That is all. Within that, each individual access agreement or order will have to be negotiated or considered in the light of the actual circumstances on the land. I hope, therefore, that on reconsideration the noble Viscount will feel able to withdraw the Amendment and will feel satisfied that what he has in mind will be accomplished through the procedure which will be followed under the Bill.

VISCOUNT MASSEREENE AND FERRARD

I thank the noble Lord for his explanation. Perhaps instead of saying "one ewe to five acres", I ought to have said "one ewe to three acres". But I still think that it is a quite fair definition of "open country". In view of what the noble Lord has said, I shall not pursue the matter any further. Of course, a great deal of this Bill is dependent on the Secretary of State. It is true that we can appeal to the Secretary of State, but he is not a court of law; he is a law unto himself. And, of course, one can be overruled, and one may sometimes be unfairly overruled. Having said that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.14 p.m.

On Question, Whether Clause 10 shall be agreed to?

VISCOUNT MASSEREENE AND FERRARD

May I ask a question on Clause 10 regarding camping which I asked on Second Reading? Does an access order to open country allow camping anywhere in that open country? I do not know whether the noble Lord can answer that question. The other question I should like to ask is regarding the foreshore, the beach. Does an access order to open country where you have a beach allow anyone to draw their boat up on the beach and to keep it there for all time? I do not know whether the noble Lord can tell me that.

LORD DRUMALBYN

Before the noble Lord replies, may I say that this question could have been raised either on this clause or the next clause which deals with the rights of the public. At some stage or another in the course of the Bill, I think it would be extremely helpful if the noble Lord would say what are the rights of the public. What is meant by "open-air recreation"? As this Bill is drafted it gives new rights, and the impression one gets from reading it is that those rights are pretty wide, subject, for example, to subsection (2) of Clause 11, which says: Nothing in the provisions of the foregoing subsection shall entitle a person to enter or be on any land, or to do anything thereon, in contravention of any prohibition contained in or having effect under any enactment. But, subject to enactments, the impression that the Bill gives is that the rights—that is to say, the open air recreation rights—are pretty wide.

I asked the noble Lord on Second Reading, for example, about pony-trekking, and he was good enough to write to me. He told me in his letter that if the agreement or order did not specifically say so then it would not cover pony-trekking, or indeed the taking of a single pony on to the land". I think it would be extremely useful if the noble Lord could make a general statement as to what people may do who may go on the land. I am quite certain that he will say that all these matters are questions of negotiation. But the question in the negotiation is whether you are going to add to the rights already existing, or whether, as the Bill gives the impression, the negotiation is really dealing with restriction of wide rights that are conferred already in the Bill. I think it would be most helpful, to the public as well as to your Lordships, if the noble Lord would make that clear.

LORD HUGHES

There have been a number of fears mentioned to me about the camping position. There was the point raised by the noble Viscount, Lord Massereene and Ferrard, in relation to the foreshore. The noble Lord, Lord Drumalbyn, raised the more general position as to what exactly are the rights of the public—these new wide rights? I think what he asks for is quite proper; namely, that there should be a general statement of the position. I think, perhaps, it would be better if we were to leave this until a later stage of the proceedings, because there might well be other points of the same kind emerging.

As our time is limited, I think it would be better if there were a comprehensive statement towards the end of the Bill, perhaps even on the Schedule, when I would endeavour to mop up the various points that have emerged during discussion. For instance, I can give an answer right away to one of the camping points, but it would not meet other points. Camping would not be included willy-nilly on access land. It would be subject to the normal arrangements for camping sites et cetera, or by permission of the owner. But that only touches on one aspect. It does not say anything about camping on verges, about which noble Lords have spoken. If it is for the convenience of the Committee I should prefer to leave it for a comprehensive statement on all these matters.

THE EARL OF HADDINGTON

Surely the majority of the foreshore in Scotland is Crown property, and therefore the public have the right to do what they please with the foreshore up to the high-water mark. Is that not the case? It certainly is where I live.

VISCOUNT MASSEREENE AND FERRARD

It is not so where I live. I have the foreshore rights.

THE DUKE OF ATHOLL

I think one would be a most unhappy camper below high-water mark.

LORD HUGHES

Noble Lords opposite will not expect me to intervene in this Party forum.

Clause 10 agreed to.

Clause 11 [Rights of public where access agreement or order in force]:

5.21 p.m.

LORD BURTON had given Notice of his intention to move, in subsection (1), to leave out from "without" to "access", and insert "without causing damage". The noble Lord said: I wish to move this Amendment in a slightly altered form. The intention is the same, but I regret that my drafting is slightly at fault. The Amendment should read: Page 9, line 26, leave out from ("without") to ("or")—not "access"—in line 27, and to insert ("causing damage"). Following the remarks on Second Reading by the noble Lord, Lord Hughes, we had hoped that the Government would themselves amend this clause. There was considerable discussion on it in another place, and it seems to have been left in a somewhat hazy condition—indeed, it has taken a number of lawyer's explanations to try to disentagle the matter. I hope that the wording I have put in will slightly simplify it.

I think the objects of my Amendments are quite clear. In various clauses in this Bill, and in other Bills recently before the House, the Government have resisted the addition of various bodies and organisations for consultative purposes. For instance, in another place an Amendment seeking that the Countryside Commission should have to consult with the Development Board, and in the Water (Scotland) Bill, that there should be consultation with the purification boards, was turned down on the ground that the mention of any one body in the Bill might, by implication, exclude other bodies. Surely, in the same way, if we are being consistent, the mention of specific types of damage, as here, will imply that other types may be permissible. I am certain that this is not the intention of the Government, and that they would not wish to encourage any damage. Therefore I hope it will be possible for the noble Lord to accept this Amendment, which I now beg to move in the amended form.

Amendment moved— Page 9, line 26, leave out from ("without") to ("or") in line 27 and insert ("causing damage").—(Lord Burton.)

LORD HUGHES

As the noble Lord has now amended his Amendment, which is perfectly acceptable to the Government—my only objection to it was that it had too many "without" in it—I am happy to accept it.

LORD BURTON

I should like to thank the noble Lord for accepting the Amendment.

On Question, Amendment agreed to.

On Question, Whether Clause 11, as amended, shall stand part of the Bill?

LORD FERRIER

On Second Reading I mentioned my feeling that this clause could be improved if the conditions set out in subsection (4) were made more emphatic earlier in the clause. I own so few acres that they are not likely to be the subject of an access order or agreement, and perhaps for that particular reason I am able to approach this in a completely disinterested way. From the point of view of people studying the Bill who are not landowners, Clause 11 could be improved, I think, by making it perfectly clear that in this matter of access there are responsibilities on both parties, and that it is essential, if the Bill is to work smoothly, that people who take advantage of access agreements shall understand that there are specific obligations when they go in the countryside.

The noble Earl, Lord Dundee, referred on Second Reading to the necessity for some sort of education by the Commission so that this point is made clear, and what I am saying now links up in a remote way with what the noble Lord, Lord Drumalbyn, said at the end of Clause 10; that possibly it would be better if here and there the Bill were more explanatory. I am making these remarks without putting forward any specific Amendment, but I hope that the noble Lord will give his mind to this aspect. As a matter of fact, from his speech on Second Reading I thought he might have moved an Amendment himself and recognised this point, that at some stage in the Bill, preferably early on, it should be made abundantly clear that in this matter of access to open countryside there are responsibilities on either hand.

LORD HUGHES

As the noble Lord, Lord Ferrier, has said, on Second Reading I conceded that the point which he raised was one worth looking at, and it seemed to me then that it might be necessary to move an Amendment linking Clause 11 with Schedule 2. However, on going into it with my advisers I have come to the conclusion that this is not necessary. We admit that the clause is a long one, and if both the clause and the Schedule seem a cumbersome way of dealing with this matter all we can say is that these are matters of such considerable complexity that it is impossible to do it as simply as perhaps we should all like. There is, however, a link, although in the other direction from that which the noble Lord wishes. But there could not be anything more direct than the link in Schedule 2 itself, the opening words of which are a reference back to Clause 11. Notwithstanding that, I will look at the point again to see whether it is possible to do anything, because I admit that it is preferable that the link should come from the clause, which is read first, rather than that one should have to go through it and refer to the Schedule and then find a reference back to the clause. It may not be possible to do it in the way suggested, but I will certainly look at it again.

While we are on the Motion, That the clause stand part, perhaps I may refer to another item which has been giving concern to a number of noble Lords, and about which the noble Viscount, Lord Mountgarret, spoke to me. This was the question of shooting rights and deer forests, grouse moors and the like. He raised the question of the importance of these shooting rights, and of our examining how they will fit in with access arrangements under the Bill. The Landowners' Federation have had shooting rights in mind in discussions they have had with my Department officials and my honourable friend the Minister of State, both before and during the course of the Bill through Parliament. We are satisfied that the clause as drafted, and in particular subsection (3), will enable public access and shooting, whether of game or deer, to be dovetailed together.

Subsection (3) provides for an access agreement or order to include restrictions on access both as to time and to place. In other words, it can be agreed between the parties to the agreement that a grouse beat may be closed on the days when shooting is planned, and similarly with a hill when stalking is planned or is in progress. People who use the countryside regularly for hill walking are already accustomed to respect the life and business of the countryside, and they do ask keepers and respect their advice as to where they may or may not walk on any particular day without disturbing the shooting. There are, of course, the odd "black sheep" in the flock. But we hope that walking arrangements will be able to control, or at least deter, the worst excesses.

The noble Viscount, Lord Mountgarret, will know that access arrangements work satisfactorily in grouse moors in the Peak District and landowners there have taken the initiative in seeking access agreements; and although the problems are different, I am confident that access arrangements could be made just asacceptably to deer forests. I know that the Red Deer Commission are well disposed to the Bill, and we have undertaken that the Secretary of State will consult them before he approves at least the initial access agreements affecting land carrying deer. I hope that that statement on this particular access will prove helpful to noble Lords who have been genuinely interested and concerned about this problem.

THE EARL OF CROMARTIE

Before the noble Lord sits down, would he now say something about the question of camps—tents as opposed to caravans—which I mentioned earlier?

LORD HUGHES

I should prefer to leave that until the end. I referred to this point only because it arose particularly on Clause 11, and that was thought to be the proper place on which to make a statement on this particular matter.

THE DUKE OF ATHOLL

I welcome what the noble Lord has just said, and I know that in the Peak District the arrangements for grouse shooting have worked most satisfactorily. What worries me a little is the difference between grouse shooting and stalking. In stalking a small party goes out on the same piece of ground every day, except Sundays, for six weeks—and even on the days when it does not go out on the same ground it is essential that the deer should not be disturbed on those days. It seems to me that in places where access is extremely popular this may raise difficulties. I fully appreciate that it will not raise any greater difficulties than are liable to occur at the moment. However, I think that this is a problem to which we must direct our thoughts before we can be entirely satisfied that Clause 11 is properly drawn up.

One further point is that during the lambing season much the same considerations apply. One does not want people, particularly people with dogs, even if they are under control, going among the ewes during the lambing season. But, unlike the position with grouse shooting, it is no good telling people that they may not go there for a couple of days each week. The prohibition must be for six weeks to two months solid. This may be very hard on the public who wish to take advantage of access agreements during the lambing season or the stalking season. Luckily, these two seasons do not occur at a time of peak popularity for access to the countryside. None the less, there are some people who take their holidays at those times of year and who will wish to take advantage of access during those periods. I should like to know what arrangements are going to be made to warn people about where they can and cannot go during those two particular periods, and whether the Government have thought about this problem. The stalking problem virtually does not arise in England, and although the lambing problem does arise, I believe that in some parts of the Peak District it has not been so satisfactorily solved as the grouse shooting problem.

VISCOUNT MASSEREENE AND FERRARD

I should like to ask the noble Lord a question in regard to what he has said about access orders in relation to hill land where there is no access order, and where one has the public wandering around the hills. Does this now mean that the authorities will make an order during the shooting and stalking season that for a certain period the public will not be allowed on that area? What I am getting at is that if an area has not an access order upon it but is still a very valuable game area from the point of view of revenue, will the public be debarred from straying all over that area at the height of the game season?

LORD HUGHES

Obviously, if no access order is made, the position remains exactly as it is at present. We do not need to issue a statement saying that the law remains unchanged where there is no access order.

VISCOUNT MASSEREENE AND FERRARD

The position at present is highly unsatisfactory. I have a deer forest, and at times there are hundreds, and perhaps even thousands, of people wandering all over it in the stalking season. The point is that under the present situation I cannot rent a large part of this forest, and the law at present is, as I say, highly unsatisfactory.

LORD HUGHES

I am afraid we are not making very good progress at this stage. Surely this is the best indication that the noble Lord should seek to make access agreements in due course and get the benefits which flow from them.

LORD BURTON

I welcome the statement made by the noble Lord. I should like the Government to bear in mind that the whole population of various glens depend almost entirely on sporting facilities, and the whole position of rural areas of Scotland could be altered if this were not brought in. Therefore I am most grateful to the noble Lord for his statement.

Clause 11 agreed to.

Clause 12 [Commission to consult with local planning authorities on access requirements of their areas]:

5.37 p.m.

BARONESS ELLIOT OF HARWOOD moved, in subsection (1), after "authorities" to insert: and with such persons as appear to the Commission to be representative of the owners and occupiers of land in their areas". The noble Baroness said: This clause provides for consultation between the Commission and local planning authorities on access requirements for the areas, but no express provision is made for consultation with the owners and occupiers as well as with local planning authorities. This Amendment proposes that the Commission should also consult from time to time with such persons as appear to them to be representative of the owners and occupiers of the land in their areas.

Clearly, the owners and occupiers will have something to contribute in putting forward the views of what access requirements already exist in their areas and what further requirements may be needed. The views of the local planning authority and the owners and occupiers may differ within any given area. It is important that the Commission should receive a balanced picture on the access facilities and future requirements of access within an area. Some local planning authorities are not always very practical in their approach. It is important that the Commission, in the exercise of their functions, should have the benefit of views and advice from owners and occupiers of land in question, and this Amendment is drafted in a form for which there is precedent in other legislation. Therefore, I very much hope the noble Lord will be able to accept it.

Amendment moved— Page 11, line 10, after ("authorities") insert the said words.—(Baroness Elliot of Harwod.)

THE EARL OF DUNDEE

One reason—

LORD HUGHES

If the noble Earl would permit me to continue, I think I can probably satisfy him. If not, he can come back on the matter. Amendments to accomplish this purpose were moved in another place, both in Committee and on Report stage, and the Government were unable to accept them, although there was sympathy with the point of view expressed. The present Amendment is a great improvement on those which were moved in another place, and the Government are prepared to accept it in principle. However, we cannot accept all that is in it. There is one reservation which we must make, and it refers to the use of the word "persons". We feel that this is too wide. Used in the legal sense "persons" could include, as well as individuals, corporate bodies like the Landowners' Federation and the National Farmers' Union; but these would clearly be the right persons to consult rather than the individuals, and we think that the word "bodies" would be preferable. This would be easier for the Commission. It would take them out of the invidious position of having to decide whether any individuals were representative of the owners and occupiers of the land. Having said that, I ask the noble Baroness to withdraw the Amendment now, and I undertake at the next stage to submit, on behalf of the Government, an Amendment which we think will give effect to what she wishes, and in a form of words which does not affront the draftsman.

THE EARL OF DUNDEE

I should like to thank the noble Lord for what he has said. Clearly, the changes which he wants to make in the Amendment are legally desirable, and it would greatly facilitate the drawing up of these agreements if this could be done. The noble Lord referred to the Landowners' Federation which has just established new regional councils, and these would obviously be suitable bodies to consult before any steps are taken and an access order is made. In view of what the noble Lord has said, I am sure that my noble friend will wish to withdraw this Amendment.

BARONESS ELLIOT OF HARWOOD

I thank the noble Lord very much for his answer, and I am sure he will move a redrafted Amendment. I have great pleasure in asking leave to withdraw my Amendment.

LORD SOMERS

Before my noble friend withdraws her Amendment, may I ask the noble Lord whether in Parliamentary use the word "bodies" includes an individual body?

LORD HUGHES

If I were to go on the answer which I gave previously to the noble Baroness, that the greater includes the less, then I should think the answer must be, "Yes". But I would hope that by the use of the word "bodies" we do not eliminate the individual. However, I shall give this undertaking, that having objected to a particular use of the word by the noble Baroness as imposing too great a burden on the Commission, we shall make certain that by October we do not fall into another pitfall of the same kind ourselves.

LORD DRUMALBYN

May I ask the noble Lord whether in talking about "bodies" he will have in mind the need to consult at as low a level as possible; in particular with the local branches of the National Farmers' Union, which would appear to be appropriate representative bodies in the area?

LORD HUGHES

I think that in this matter we would of course follow the usual practice. In some cases I think the consultation would be at national level, while there may well be other cases where the appropriate thing to do, as the noble Lord has suggested, would be to have it at local level.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 [Access agreements]:

5.43 p.m.

LORD DRUMALBYN moved, in subsection (3), to leave out "or variation". The noble Lord said: This is a rather technical Amendment. The clause provides in subsection (3) that: An access agreement may be made either irrevocably or subject to such provisions for revocation or variation as may be specified in the agreement". I take that to mean that if it is made irrevocably it cannot be altered at all, except in the circumstances of Clause 27(3) which deals with provisions as to danger areas.

Circumstances change, and it is not clear to me why, even if an access agreement is expressed to be irrevocable, it should not also be made subject to variation, and (if I may speak to Amendments Nos. 16 and 17 together) in Amendment No. 17 I indicate a way in which it could be varied. Obviously, where you have agreement it should only be varied with agreement. If somebody makes a proposal for a variation and the other party does not agree, it may be desirable to have an arbiter or to refer the matter to the Secretary of State. But plainly it would not be right for the Secretary of State or the arbiter to alter the terms of the agreement without, at any rate, the consent of the proposer of the variation. That is the purpose of these two Amendments. I would only add that it is not entirely clear to me why, if an access agreement can be revocable, it cannot also be made for a term of years. I beg to move.

Amendment moved— Page 11, line 37, leave out ("or variation").—(Lord Drumalbyn.)

LORD HUGHES

I must confess that it was not completely clear to us what the noble Lord had in mind in proposing these two Amendments, and what he has indicated goes a little beyond the possibilities which we had considered. In asking him to withdraw—

LORD DRUMALBYN

May I make it clear that my last observation was not covered by the Amendment. That was purely an observation about the term of years.

LORD HUGHES

I was referring to the noble Lord's desire to have an irrevocable agreement subject to variation. We had not thought that that was what he had in mind. The Bill as drafted provides, as one would expect for any agreement in the sense in which that term is normally understood, that the agreement may itself provide for its variation; and to include the provision now suggested would, in my view, be contrary to the spirit in which agreements are normally made and expected to be kept. Looking at it from the point of view of an agreement which does include within itself provision for variation, if we accepted the Amendment we should be taking away from the value of the agreement which had been arrived at. The Amendment would create the position that if one party to the agreement wished to vary it, he could appeal to the Secretary of State and, if he convinced the Secretary of State that it should be varied, the initial agreement could be set aside.

As the Bill stands at the present time, the agreement could only be varied within its own terms, and that would imply the consent of both parties. Yet the noble Lord's Amendment envisages the possibility of the agreement being varied against the will of one of the parties. We think that it is unnecessary to do this. Having entered into an agreement to which both sides are parties, and if that agreement provides that it may be varied by the consent of both parties, we do not think that it is necessary to go beyond that.

However, looking at it from the other side, that there might be provision for variation of an irrevocable agreement to take account of changed circumstances, that is a consideration with which my answer does not deal. I should like to look at the matter from that point of view, to find out whether or not it is possible or desirable to make provision, not for the withdrawal of an irrevocable agreement, but for its variation to take account of possible changes in circumstances. If the noble Lord cares to withdraw the Amendment I shall get in touch with him well before the next stage, either with the suggestion of a Government Amendment or the reasons why we do not wish to make that provision. He will then, of course, be free, if he feels it necessary, to take further action on Report stage.

LORD DRUMALBYN

I am most grateful to the noble Lord. Perhaps I expressed the purpose of my Amendment badly, but I do not think I meant to go any further than he has indicated. Of course, if an agreement is irrevocable it is there to stay. What I had in mind was the distinction in the Amendment between irrevocable agreements, the terms of which cannot apparently be varied in any way, and revocable agreements and variable agreements. There is that distinction. I thought that, whether an agreement was irrevocable or revocable, it should be capable of variation in changed circumstances. That is all I had in mind, and I am grateful to the noble Lord. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.50 p.m.

LORD DRUMALBYN

I am rather out of my depth on this particular Amendment, and I had hoped that perhaps some of the noble and learned Lords might be here at this point to help me out. But I am advised that it is not normal for a liferenter to be able to make agreements without the consent of the trustees. The next subsection deals with trustees; and it seems to me that the right people to make agreements of this kind in regard to land subject to a liferenter's interests are the trustees, and not the life-renter. I beg to move.

Amendment moved— Page 11, line 39, leave out ("the liferenter or").—(Lord Drumalbyn.)

LORD HUGHES

Although my swimming abilities in this direction are not particularly great, I may be able to rescue the noble Lord from the deep water in which he finds himself. The point of this Amendment was discussed at considerable length in another place, and it is rather interesting that a scion of this House, the Earl of Dalkeith, was fully in support of the Government's view. It is also interesting that, as my honourable friend the Minister of State pointed out, we have not been pressed by the Scottish Landowners' Federation on the point, which we think would certainly have been the case if they thought it was a matter of real significance. I should like to go on, however, to explain the position as we see it.

Where there is a liferenter, it will normally be the case that he will be a party, for his interest, to any agreement made between the trustees and the local planning authority. However, cases will occasionally crop up where the trustees, because of some doubt about their powers or because they think it in the best interests of their trust, cannot see their way to enter into an agreement, even though as individuals they would each be prepared to do so had their interest been a personal one. In these rare cases it seems wrong to force the local planning authority to make an order. Perhaps the trustees would even feel obliged to object, with a view to a possible early sale of the estate. But the liferenter cannot give away a better right than he has, and could bind the land only for the period of his interest, which would cease at his death. Therefore I can see no valid reason why the liferenter should not be enabled (as his equivalent in England is) to grant access by agreement to the land he enjoys for the period of his interest. Accordingly, I hope the noble Lord will not press this Amendment. And because of what I have said, the Government make the point, of course, that the next Amendment is not necessary.

THE DUKE OF ATHOLL

Before my noble friend withdraws this Amendment, as I expect he will, may I say that, while I agree that the next Amendment is probably not necessary, it would make it much easier for people reading this Bill to understand the restriction on the powers of the liferenter or the heir of entail. I was wondering, therefore, whether it would be possible for the noble Lord to accept it in the interests of making it possible for anyone who happens to have to read this Bill, and who is not a lawyer, to understand it.

LORD DRUMALBYN

I am much obliged to my noble friend. In order to get the discussion in order, may I first beg leave to withdraw Amendment No. 18? Then, in order to enable the noble Lord to reply to my noble friend, I shall move Amendment No. 19.

Amendment, by leave, withdrawn.

LORD DRUMALBYN

I beg to move Amendment No. 19.

Amendment moved— Page 11, line 41, at end insert ("for a period not exceeding the period of his interest in the land.").—(Lord Drumalbyn.)

LORD HUGHES

This, as the noble Lord has already said, is deep water, but may I try to get the position quite clear? When the noble Lord says he wishes the position to be made clear, does he mean by the retention of the words sought to be omitted by the last Amendment or by the insertion of the words set out in the Amendment we are now discussing?

LORD DRUMALBYN

If I might make it clear, we have now agreed not to leave out the words set out in the previous Amendment, and are considering what application the words in the present Amendment would have to a life-renter or an heir of entail.

LORD HUGHES

What I should have said was that I am not clear what the noble Duke wishes to make clear.

THE DUKE OF ATHOLL

I was hoping the noble Lord would agree to accept the words in this Amendment, because, although I am quite prepared to accept that they probably are not necessary legally, I think that the non-lawyer, reading through this Bill, would find it easier to understand that there was this particular limitation on the heir of entail or the liferenter if these words were inserted.

LORD HUGHES

I think it is a rather dangerous principle to start putting words into a Bill merely to make a legal point like this as clear as may be to the person who is not legally minded. I cannot accept this Amendment, because the information I have is that there is no doubt at all in law that the liferenter cannot give a greater right than he has, and that therefore the access agreement can be made only for the period of his interest.

LORD DRUMALBYN

For my part, I am quite satisfied with that. I think one would not make an agreement of this type without consulting one's lawyer, and he would know the answer. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 13 shall stand part of the Bill?

THE DUKE OF ATHOLL

May I, very briefly, ask the noble Lord one question? Is Clause 13, which deals with the power to make access agreements, governed by Clause 10, which defines "open country", or is it governed by Clause 2, which defines "the countryside"? Because I think there definitely will be occasions when it will be advantageous for all parties to be able to make access agreements—and I emphasise access agreements—but not access orders over land which does not come within the definition of "open country". I am thinking particularly of places where fishermen would like access to the banks of a river, or along the banks of a river, or something like that. I therefore hope that the noble Lord will be able to assure me that Clause 13 is governed by Clause 2 and not by Clause 10, and that Clause 14, "Access orders", is governed by Clause 10 and not by Clause 2.

LORD HUGHES

Would the noble Duke like to wait until I make a general statement later on, by which time I shall know the answer?

THE DUKE OF ATHOLL

Certainly.

Clause 13 agreed to.

Clause 14 [Access orders]:

BARONESS ELLIOT OF HARWOOD moved, after subsection (2) to insert: ( ) Before submitting an access order to the Secretary of State a local planning authority shall, after consultation with the owners and occupiers of the land which it is proposed should be included in the order, ascertain what public paths or rights of way are already available to the public. A report of such facilities shall be attached to the application to the Secretary of State for an access order. If the Secretary of State is satisfied after any objections to the proposed access order have been considered at a local enquiry and hearing in accordance with Section 15(4) of this Act that public paths or rights of way are adequate within any part of the land comprised within the said access order he shall not confirm the access order in so far as it relates to any such part of the said land.

The noble Baroness said: We have already been discussing the problems arising out of Clause 10, and this Amendment refers to this clause. There have been declarations by the Government that access will normally be by means of an access agreement rather than by an access order. However, there are bound to be difficult cases where agreement cannot be reached, however much good will there is on the part of the owner and the local planning authority, who will be the parties to the negotiations. We do not think it right that where the public already have adequate rights of access, by means of public paths or rights of way, the Secretary of State should have the power to issue an order in respect of any such land.

The purpose of this Amendment is therefore to write into the Bill safeguards which would preclude the Secretary of State from confirming an access order in respect of any land if he was satisfied, after a public local inquiry, or possibly a hearing, that existing facilities were adequate. We do not feel that an Amendment on these lines would be detrimental in any way to the thinking and the objects behind Part II of the Bill. It does, however, place an emphasis on making use of existing facilities, whether under an access agreement or an order. It also attempts to place emphasis on the desirability of public paths and rights of way in the case of inbye and arable land through which the public must pass when going on to hill and rough grazings. The Amendment is not seeking to narrow the definition of "open country," but merely to ensure that where facilities are adequate an order shall not be confirmed. It seems sensible, therefore, to write this into the Bill. I beg to move.

Amendment moved— Page 13, line 14, after "agreements" insert the said subsection.—(Baroness Elliot of Harwood.)

LORD HUGHES

This Amendment is useful in that it directs our attention to the kind of processes through which a local planning authority will have to go before making an access order. The Secretary of State will also take this kind of consideration into account before he approves an order. The Government accept that access arrangements will often involve a combination of a public path agreement or agreements with the access agreement itself. A public path could frequently be the best way of getting access through inbye land to the rougher land higher up the hill. This is the kind of question which would be naturally the subject of negotiation and examination when an access agreement or order was in contemplation. To that extent we agree with the spirit of the Amendment. But we do not think the Amendment is necessary. The Secretary of State will look at these matters in any case.

Furthermore, the Amendment appears to impose on the local authority a duty which may be unnecessary. The basic idea of free access is access to roam the hills away from such paths as there may be. No matter how many paths there may be in an access area, they could never satisfy this freedom to roam; and, to that extent, a detailed investigation of all rights of way in the area would be an unnecessary and time-consuming exercise. For these reasons I hope the noble Baroness will not press the Amendment.

BARONESS ELLIOT OF HARWOOD

If the noble Lord assures me that these matters will be considered and are under consideration, I shall withdraw the Amendment. But it seems to me that where you have doubts, where there may be difficulties, it would be simpler to lay down some kind of arrangement which would make it easier. However, if the noble Lord thinks it unnecessary and that it is already in the Bill, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clauses 15 and 16 agreed to.

Clause 17 [Provisions for securing safe and sufficient access]:

6.3 p.m.

LORD DRUMALBYN

The purpose of this Amendment is to make certain that access is not merely on to the whole of the land, but on to each part of the land. What I have in mind is the access from one part of the land to another; and not just access on to the land itself. It is important in this context because here we are concerned with safety and the adequacy of access. If you are allowed to go on to the land, presumably, once on it (subject to what is contained in the agreement, and the restrictions and exceptions) you can go where you like on it. In particular, it may be necessary to cross rivers. There may be bridges giving access from one part of the land to another. I hope, therefore, that the noble Lord will see his way to allowing these words to be added, so as to enable anyone to go from one part of the land to another, subject to such restrictions as may be agreed upon or allowed. This is the sole point of the Amendment. It may be it is not necessary because access to the land may include access to any part of the land. But it is in order to get the noble Lord to state whether that is so that I beg to move.

Amendment moved— Page 18, line 12, at end insert ("and the expression 'means of access to the land' includes means of access to any part of the land other than excepted land.").—(Lord Drumalbyn.)

LORD HUGHES

We had assumed that the noble Lord, Lord Drumalbyn, was seeking information by this Amendment, and I am glad that is the case, because I cannot accept the Amendment for two reasons. The first is because, as he anticipated, in part it is unnecessary; and the second is because, in part, it is too restrictive. I confirm that the definition of "means of access", which the Amendment proposes to alter, already applies to any part of the land; so the first part of the Amendment is unnecessary. Secondly, an access agreement, though not an access order, can provide for access to excepted land. This is made clear by the proviso to Clause 11(1). If an agreement did so provide, it would obviously be sensible that the local authority should have power to provide means of access to the excepted land. If this is so, the inclusion of the last four words would be unduly restrictive. I hope, therefore, that the noble Lord, having got the information he wished on the first part—and I am certain he does not want to be restrictive in these last four words—will find it possible to withdraw his Amendment.

LORD DRUMALBYN

The intention was not to be restrictive. I am grateful to the noble Lord for his explanation. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 17 shall stand part of the Bill?

LORD DRUMALBYN

May I ask just two questions? First, with regard to line 8, page 17: the maintenance of any such means of access". Here, again, I am concerned with bridges in particular. I am well aware how often these bridges are washed away. I am not certain whether "maintenance" includes restoration or rebuilding where a bridge is entirely washed away. If it is no longer there, you cannot maintain it; it has to be replaced. That is the first point. The second point is in line 31. This part allows for the authority to contribute to a part of the cost as may be specified in the agreement. Does "part" include proportion; or does it allow only a specified sum of, say, an ascertained estimate to be contributed. I think it should be possible to contribute a proportion of the cost.

LORD HUGHES

On the first point, I think I must agree with the noble Lord that if a bridge were washed away and had to be replaced this would not be covered by "maintenance" in the ordinary way as we understand it. On the second point, he referred to the words "such part of that cost" in line 31. If we go back to the words in line 28: where it is agreed that it shall be carried out otherwise than by the authority may defray the cost of the carrying out thereof, or may contribute such part of that cost as may be specified in the agreement". As this really contemplates that they may cover the whole or part of the cost, it seems that there is no restriction at all on the way in which this can be done. Obviously, therefore, it may be proportionate, if that is what is wanted.

Clause 17 agreed to.

Clause 18 agreed to.

Clause 19 [Suspension of public access to avoid risk of fire.]:

THE DUKE OF ATHOLL moved, after "thereon", to insert or that members of the public are likely to be exposed to undue personal risk".

The noble Duke said: Clause 19 gives the Secretary of State power to suspend access in certain conditions of weather owing to the danger of fire. I should like to extend this power so that the Secretary of State could suspend access in certain conditions of weather but for other reasons. These are that people are becoming increasingly keen on climbing and mountaineering and that during the winter they often go up inadequately dressed and, more important, inadequately shod. They often get caught by blizzards and then a large number of people have to spend a great deal of time and money searching for them. On occasion they do not find them and they die of exposure on the hills. When the access agreements come into general use this may be something which will happen with increasing frequency. People will say, "This ground must be all right; there is an access agreement applying to the area. It must be safe for us to go up." They will go up and accidents of this kind will become more frequent.

Even more important, there are certain places where avalanches are not unknown in Scotland under certain conditions. These conditions may frequently be forecast, and I should have thought there was a good case for giving the Secretary of State power to close access agreements over those areas when such weather conditions were likely to occur. I feel that in the interests of public safety it is desirable for some provision like this to be written into the Bill. Were the Amendment to be accepted, as I hope it will be, I think that the title of the clause would have to be altered to, "Suspension of public access in times of unusual weather conditions"—or something like that. I beg to move.

Amendment moved— Page 19, line 18, at end insert the said words.—(The Duke of Atholl.)

6.12 p.m.

LORD HUGHES

I had envisaged that the noble Duke might have in mind such things as landslides or avalanches. Though he did not mention landslides, no doubt he had them in mind in view of his reference to avalanches. I must admit I had not contemplated that he had in mind the possibility of some control over or inspection of the type of clothing and footwear of the people going on the land. If we were to accept that responsibility, there would be little danger of any unemployment in the Highlands, as we should need almost every available man in order to carry it out; though I do not think it would be a productive form of employment. I think I must accept that people will gradually become educated into the proper way of doing things. The fact that we are also going to make access to the water more freely available does not imply that we are saying to everyone who cannot swim, "We are giving you access to the water and you can proceed to walk on it, although you cannot swim in it".

We believe that fire risk is a subject which may be properly dealt with in the clause; but where the risks to which the noble Duke refers are substantial the proper course would be to consider whether it is desirable that access agreements should be made at all. Clause 27(1), to which I would direct the attention of the noble Duke, is relevant. If it is considered that the risk is acceptable, then the powers of Clause 27(4) are available for the local authority to take steps to warn the public of the danger. We do not think this a matter which can be satisfactorily dealt with under Clause 19. I have no doubt that if a significant natural hazard arose or seemed imminent, as distinct from the one which was there permanently, the police and the local and central Government officials in the area would, without the need for any statutory reminder, take all possible steps to warn and protect the public. This would be on a much wider basis than merely in connection with access land. For these reasons I do not think it is either necessary or desirable to accept the Amendment. I do not think it would be likely to be of help in the circumstances which the noble Duke has in mind.

THE DUKE OF ATHOLL

I am sure the noble Lord, Lord Hughes, did not wish to misrepresent me. I never intended to suggest that there should be a sort of kit inspection before every climber set off up the hill. But I am worried by the fact that there are many places which, although providing excellent climbing for nine months of the year, may become extremely dangerous in December, January and February. I should have thought it was worth writing something like this into the Bill. I am sure that the psychological effect of an access agreement will be to make people think that access is that much safer at all times of the year. They will visualise that there will be a rescue hut in which they may take refuge if they are caught in a storm, though of course in many cases there will not be. I have no wish to press this matter on the noble Lord. If he is satisfied that his arrangements for warning the public about the dangers are enough, well and good. But I should like him to think further about this point, because I think it is a more difficult problem than many people realise. The statistics relating to climbers and similar people lost in the winter and during storms show that the numbers are growing every year. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN

I beg to move this Amendment to leave out "the land" and to insert "such parts of the land and". The clause would then read that the Secretary of State may direct that section 11(1) above shall not have effect in relation to such parts of the land and during such period as may be specified in the direction". I think that the point is quite clear. It seems rather absurd that even in the driest of times, because there is one wood which may be liable to be set ablaze, a whole vast mountain range should be denied to the public. Yet "the land" presumably can mean only land which is subject to the access agreement. There is no provision here for discriminating between one part of the land and another, and it seems to me sensible to deny access to certain parts of the land in certain circumstances but to allow access to other parts. I beg to move.

Amendment moved— Page 19, line 20, leave out ("the land") and insert ("such parts of the land and").—(Lord Drumalbyn.)

LORD HUGHES

We do not think this Amendment is necessary. The first part of the clause refers to access to the land, then there are some words, and it goes on to say, "or any part thereof", and directions by the Secretary of State for Scotland can be limited to any part likely to be at risk. Having said that, may I say that if on looking at the clause again the noble Lord is not satisfied that his point is completely covered, I do not think any harm would be done by adding the words—other than, perhaps, the ultimate outrage to the noble Lord's own predisposition not to have unnecessary words in a Bill. If he is satisfied that these words are completely necessary, I would not dissent from adding them.

LORD DRUMALBYN

I am bound to say that I thought they were necessary, and if the noble Lord is willing to add them, I shall be glad.

On Question, Amendment agreed to.

On Question, Whether Clause 19, as amended, shall stand part of the Bill?

THE DUKE OF ATHOLL

I was wondering how the mechanics of this clause would work. Will the information be broadcast over the radio? Obviously it will be something on which a decision will have to be taken very quickly. As I am sure that anyone who lives there will know, the moor dries up with remarkable rapidity at certain times of the year. The strength of the wind is one factor that has a big effect on fire danger. If there is virtually no wind, the risk is not very great, but if a half-gale is blowing, the risk is considerable. I should like to know, therefore, how the Secretary of State is to be told that the fire risk in a certain area is approaching the danger level and, when he agrees to suspend an access order, how the public are to be informed of that fact.

LORD BURTON

How are the public to know when the restrictions are lifted; and who is to say when restrictions are to be put on or lifted?

LORD HUGHES

It is made clear in the clause, which starts by saying, "If the Secretary of State is satisfied", that the decision is the Secretary of State's. But, of course, my right honourable friend is not going careering round the country himself. A decision will be taken on behalf of the Secretary of State, possibly through local Forestry Commission officials, and it will be made known by whatever means possible. In conditions of sufficient gravity, we should use all possible means, including wireless and television, as well as police and officials on the spot.

There will not be the same urgency about bringing restrictions to an end, but we should give adequate publicity to the fact that restrictions were lifted. Those who wanted to get on would make inquiries as to whether they could do so, and if they had not previously read the news, or heard it on the radio, they would be told that the restrictions had been lifted. In the first case, we appreciate that getting information over quickly might well be of prime importance and we should therefore take all necessary means to do so.

LORD DRUMALBYN

I think that what my noble friend Lord Burton is asking is whether the phrase "during such period" includes an indefinite period—for example, until further notice. If that were the case, it would be the opposite way round and notice would have to be given that access was reopened.

LORD HUGHES

We should have to give notice that restrictions were at an end, but in the sort of emergency envisaged here we should not have an order for so many hours, days or weeks. The duration of the restrictions would depend entirely on how long the emergency conditions persisted. They might be brought to an end rapidly by a change in the weather. On the other hand, a continuation of the weather conditions which had created the risk might persist for weeks on end. Obviously, there cannot be any definite period. I am reminded of a circumstances at the beginning of the war, when an official (who must be nameless) stated that the town council had entered into an agreement with the Postmaster General for a telephone service to warden posts for a period of three years, this being the official period for the duration of the war.

Clause 19, as amended, agreed to.

Clause 20 agreed to.

Clause 21 [Compensation to be assessed with regard to effect of first five years of access]:

On Question, Whether Clause 21 shall stand part of the Bill?

6.24 p.m.

LORD DRUMALBYN

We come here to the question of compensation where an order is made. I said on Second Reading that it did not seem clear why a person on whom an access order is served should have to wait for five years before compensation is claimable or payable. Claims for damage should be made as they arise, otherwise it is difficult, apart from anything else, for damage to be assessed. There are two separate types of claim here. One is a general claim for compensation for depreciation and the other a claim for particular damage. I raised the question of claims for the reimbursement of insurance premiums, and the noble Lord was good enough to say that they would be recovered. But why should anyone have to wait five years for their recovery?

I am not sure how this clause fits in with the next clause. Clause 21 says that compensation shall not be claimed for five years and Clause 22 says that application for compensation must be made not less than three months after the date of the order's coming into operation. These seem contradictory. Just as the party having to pay compensation may not know by experience what should be paid, so the party likely to claim compensation may not know by experience whether or not it is necessary to claim. I do not see how these two provisions dovetail. It seems unreasonable to expect anyone to put in a general, omnibus claim, covering all possibilities, and I doubt whether that would be permissible under the regulations to be prescribed. I hope that the noble Lord will look at these clauses again.

LORD HUGHES

I cannot say why the period of five years was chosen. Obviously some period must elapse because of the difficulty of assessing compensation, and the Government have decided that five years is a reasonable period.

Clause 21 only requires notice to be given. The final claim comes after a five-year period. There is provision for interim payments in Clause 23(1).

LORD DRUMALBYN

I am bound to say that this is the least satisfactory of the explanations the noble Lord has given so far. Perhaps we can look at this at a later stage, because, while it is true that Clause 23 makes possible payment on account, the whole concept of these clauses should be looked at to get a more reasonable provision. I submit that we should have a clear distinction between claims for damage or depreciation, or loss which can clearly be established at an early stage, and those which can be established only by experience. I hope that it will be possible to provide for this.

LORD HUGHES

I will look at this matter again. Perhaps it would be best if I were to write the noble Lord within a short period.

Clause 21 agreed to.

Clause 22 [Claims for compensation and interest]:

LORD DRUMALBYN moved, in subsection (1), to leave out "duly" and insert "in the prescribed form". The noble Lord said: This is a matter to which I had intended to refer earlier, but I am afraid I let the clause go by. However, it arises here again. The word "duly" is used, and I feel that when this word is used it would be quite possible for a planning authority, or anyone else on whom a claim was made, to refuse to accept the claim on the ground that in the opinion of the authority it was not "duly" made. I think that, as we have provision for regulations to be prescribed, for example, in subsection (2), so in subsection (1) it would be better to use the words "in the prescribed form", and allow the Secretary of State to prescribe in this case, as in others. The other case where the word "duly" is used, to which I meant to refer, is in Clause 15. Perhaps, as we have now passed this clause I can write to the noble Lord about it. I beg to move.

Amendment moved— Page 21, line 6, leave out ("duly") and insert ("in the prescribed form").—(Lord Drumalbyn.)

LORD HUGHES

The noble Lord has himself referred to subsection (2), which provides that claims for compensation shall be made in accordance with the regulations made by the Secretary of State. It is because subsection (2) lays this down that the word "duly" appears in line 6. It is there as a pointer to subsection (2). This is the usual form in which it is done. Having laid down in the clause that regulations may be prescribed, it is not necessary to use this form of words on both occasions. This accords with the noble Lord's own view, that you ought not to use four words if one will serve the purpose.

LORD DRUMALBYN

If this is well precedented, I am glad to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 22 shall stand part of the Bill?

THE DUKE OF ATHOLL

I should like to ask the noble Lord one question. When a claim is made under subsection (3) of this clause, I can see that if the land is in the same ownership as it was when the agreement or order was entered into no difficulty will arise, or should not arise. But in the event of the land having been sold, or the ownership having been transferred, I should think it might be possible that the new owner would not realise exactly when he had to claim—that is, the period not less than three months after the five years. Would the local planning authority be obliged to send the new owner a reminder that he was due to make a claim if, towards the end of that time, they had not received a claim from him or would it be up to the new owner? Or would there be some way, if a new owner forgot to make his claim, whereby the time could be extended?

LORD HUGHES

It seems to me that this is probably a point on which the new owner's legal adviser would keep him right. But it may not be so, and if the noble Duke will permit me, I will have a look at the point and see whether it is necessary for anything to be done.

LORD BURTON

If the insurance money is to be capitalised, may we have an assurance that the interest on the capital, some of which, presumably, would be set aside each year for the insurance premium, would not be taxed?

LORD HUGHES

No.

Clause 22 agreed to.

Clause 23 agreed to.

6.35 p.m.

THE EARL OF DUNDEE moved, after Clause 23, to insert the following new clause:

Saving in respect of capital gains tax and betterment levy

". It is hereby declared that where in respect of any land an access agreement or an access order is made in accordance with this Part of this Act the making of such agreement or order as the case may be shall not—

1. (a) for the purposes of the enactments relating to the capital gains tax be a disposal of an asset; or
2. (b) for the purposes of the Land Commission Act 1967 be a chargeable act or event."

The noble Earl said: This proposed new clause would provide that an access agreement or access order should not be a chargeable act for the purposes of capital gains tax, or a chargeable event for the purpose of betterment levy. It would obviously, I think, facilitate the completion of these agreements, and would also save our heavily overworked Inland Revenue officials from a good deal of fruitless and unnecessary investigation. The point was fairly fully discussed in Committee in another place, and the Government said that they would look into it. But everybody seems to have forgotten about it on Report. Perhaps we can remember something now. I beg to move.

Amendment moved— After Clause 23, insert the said new clause.—(The Earl of Dundee.)

LORD HUGHES

This new clause proposes that the making of an access agreement or order in respect of any land is not to be treated as a disposal for capital gains tax purposes or as a chargeable act or event for betterment levy purposes. I shall deal, first of all, with the capital gains tax aspect. Under the existing law, the making of an access order constitutes a part disposal of the land in respect of which it is made; an access agreement would not constitute a disposal unless the consideration included a capital sum as a premium. Broadly speaking, except where the land in respect of which the agreement or order is made has some "development value", the gain on the disposal is measured as the difference between the compensation received and an apportioned part of the cost of the entire land in respect of some or all of which the order has been made. So much of this gain as is referable to the period from April 6, 1965 (when capital gains tax took effect) to the date when the compensation is received would then be liable to tax. The position in cases where the land has some development value is more complicated, but such cases are, I am advised, likely to be relatively rare—so rare, indeed, that it has not been thought necessary to specify countryside access compensation payable under the National Parks and Access to the Countryside Act 1949, which the Bill follows very closely in this respect, in the Case F regulations made under the Land Commission Act.

There are specific provisions in the Finance Act 1965 that make the receipt of compensation of any sort a disposal for capital gains tax purposes. Once the principle that all such compensation has to be brought into account was breached, there would be a grave risk that all forms of compulsory acquisition, or disposals by voluntary agreement in cases where compulsory powers could be used, would, in the long run, be excluded from the tax charge. A proposal that gains should not be chargeable when they accrue in consequence of acquisition by authorities possessing compulsory powers (or by sale by agreement to such authorities) was debated on May 27 during the 1965 Finance Bill proceedings, but was resisted [OFFICIAL REPORT, Commons, cols. 914–918; 27/5/65] by the Government on the grounds that the capital gains tax proceeded on the principle that liability to it should not be limited to voluntary disposal of property; thus, for example, liability arises on death. It followed that if there was to be liability not limited to voluntary disposal of property, liability must arise where a capital gain arose from a compulsory acquisition.

As noble Lords are aware, it would be contrary to custom to make amendments to the tax code in legislation other than the Finance Bill. Moreover, the constitutional custom is, of course, that amendments to taxation law emanate from another place, so that we may expect that, apart from the merits of the matter, the present clause, if inserted into the Bill here, will be rejected by the other place as a derogation of their privilege.

I turn now to the question of betterment levy. The general principle underlying the charging of betterment levy is that levy becomes payable where development value is being realised. But the compensation provided for under Part II of the Countryside Bill is compensation for the depreciation of the value of an existing interest, or for damage resulting from the disturbance of the enjoyment of land in its existing state.

As long as the compensation takes this form, therefore, the Government agree that its payment should not be made a chargeable event.

We do not agree, however, that the proposed Amendment should be made. In the first place, it is unnecessary. There is nothing in the Land Commission Act, or the regulations made under it, that would make this compensation subject to betterment levy. Secondly, and even more important, the Amendment would set an undesirable precedent and would cast doubt on the position of other forms of compensation the payment of which has not been made a chargeable event but about which there is no comparable statutory declaration. Thirdly, a non-fiscal measure like the Countryside Bill is no place for legislation purporting to regulate fiscal matters. If any declaration of this kind were thought desirable it should be in fiscal legislation.

I hope it will be felt of advantage that this statement should appear in the Record, because I have no doubt that noble Lords will wish to study in writing what I am saying. It perhaps may be a little clearer than attempting to listen to a long statement of this kind. Having said that, I hope the noble Earl will feel able to withdraw the Amendment so that he may have the opportunity, at more leisure, of studying what I have said; and if he still feels he has doubts in the matter, and wishes to pursue it further, perhaps he will get in touch with me well before the next stage of the Bill.

THE EARL OF DUNDEE

I am very glad to hear that there will be some advantage in publishing this rather long and mystifying statement—as all financial law is—in the OFFICIAL REPORT. Does it mean—this is all I want to ask—that when an agreement or an access order is made, and if the owner does not receive any cash through selling anything, he will not be subject thereby to capital gains tax or betterment levy? I take it that it does mean that.

LORD HUGHES

The statement means what it says, and I would invite the noble Earl to read it in due course. If he is not clear on reading it as to what it means, I have already invited him to write me about it.

THE EARL OF DUNDEE

I had hoped that the noble Lord himself would be sufficiently clear about it to tell me whether the result of all this would mean that a betterment levy or capital gains tax was actually payable in these circumstances.

LORD HUGHES

Whether I am clear about it or not, I have sufficient respect for the Chancellor of the Exchequer not to tread too heavily in his field of territory.

THE EARL OF DUNDEE

In the hope that some day the Government may be able to understand their own statements, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 24 [Acquisition by local planning authorities of land for public access]:

THE DUKE OF ATHOLL

I think that the next Amendment, No. 26, and Amendment No. 27 are on exactly the same point, and I strongly suspect that No. 27 is in a preferable form. Therefore, I will not move No. 26.

LORD HUGHES

Your Lordships will recollect that at the beginning of the proceedings it was indicated that we should carry on to a point between half past six and seven o'clock. I think this might be a convenient moment to move, which I now do, that the House be now resumed.

Moved, That the House do now resume.—(Lord Hughes.)

On Question, Motion agreed to, and House resumed accordingly.