§ 2.49 p.m.
§ Further considered on Report.
§ Clause 34 [Orders requiring notification of agricultural operations on moor and heath in National Parks]:
§ [Amendment No. 173C not moved.]
§ Baroness White moved Amendment No. 173D:
§ After Clause 34, insert the following new clause:
§ ("Designation of areas in which moorland conservation orders may be made
.—(1) The Ministers may, if satisfied that it is expedient to do so, by order designate the whole or part of a National Park as an area (a designated area) in relation to which the provisions of section (Moorland conservation orders) shall apply.
(2) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Baroness said: My Lords, I beg to move Amendment No. 173D, and I would suggest that we consider with it Amendments Nos. 173E, 173EA, and there are some consequential amendments, Nos. 173L, P, and R. The main substance of the argument I hope to put before your Lordships relates to consideration of the first of these amendments on the Marshalled List, No. 173D. This matter was discussed at Committee stage on an amendment moved by the noble Viscount, Lord Ridley, and was supported by a number of noble Lords, including my noble friend Lord Hunt and the noble Lord, Lord Foot, and others who are with us today. The amendment was then considered on, unfortunately, Friday the 13th, rather late in the afternoon, and was lost by the narrow margin of 14 votes. Speaking then, the noble Earl, Lord Avon, said (at col. 461) that the proposals then put forward by the noble Viscount, Lord Ridley,
fail to contain an important safeguard which we understand the previous Government intended to introduce at a subsequent stage of the Bill"—
which was lost at the time of the last election—namely, a provision that the national park committee before putting into effect the proposals for moorland conservation orders must offer a farmer a voluntary management agreement, and do this of course before any compulsory order came into consideration at all.
§ We have met the point made by the noble Earl, and this improvement in the amendment currently before your Lordships will be found on page 2 of the Marshalled List in paragraph (b) of Amendment No. 173E, where it is set down in terms that before any moorland conservation order is made there should be an offer to the owner or occupier of the land of a voluntary management agreement. This is an important improvement and I hope will make what appeared to be rather complicated amendments fully acceptable to your Lordships' House.
§ I must say in fairness to the noble Earl, Lord Avon, that he went on to suggest that even the addition of this, I think important, safeguard would not of itself necessarily satisfy Her Majesty's Government. Therefore, it is perhaps worth while emphasising what the real difference between us is, because, as we understand it, the Government view is that they will be satis 517 fied with compulsory moorland notification orders but that they do not wish to take to themselves any power at all at the end of the day to make certain that these orders have any effect. To those of us who have worked in national parks, not only in Exmoor but in all parts of the country, we find this unconvincing for reasons which I hope to make clear.
§ I do not wish to take too long on this matter because it was fairly fully debated on the previous occasion, on Friday the 13th, but we should put the matter into perspective. We had a somewhat similar argument on Clause 27, on the sites of scientific interest, when again the Government resisted any element of what they considered to be compulsion. But I would make it clear that of course we are discussing an entirely different problem in the clauses and amendments now before us. As we were constantly reminded during debates on sites of special scientific interest, there are a great many of them and they are all over the country. Even if one discounts those which are already in the ownership of the National Trust, or conservation bodies and so on, and said not to be at risk, if one adds to them the few—30, 40, 50, or whatever it might be—of those with special protection accepted by the Government, there would still be some 3,000 other sites of scientific interest.
§ But on the matter we are now discussing, the ploughing of moorland and heath in national parks and only in national parks, I should be surprised if within any early future the number would go beyond single figures. But, in any case, the numbers concerned of areas where such orders would have to be made by conservation orders would be very small indeed. Had we not the type of grant structure which was discussed under the amendment put forward by the noble Lord, Lord Sandford, last week and accepted by the House, for what used to be called hill farms but are now, in EEC nomenclature, called less favoured areas, we should not have this problem at all.
§ It arises out of the grant system because, otherwise, who in their senses would insist on ploughing up heather moorland if they did not have a financial incentive at the end of it? We would not have this problem. I do not wish to labour the point on this occasion but, as most noble Lords who have been following this debate appreciate, we are in many difficulties under this Bill simply because no Minister of Agriculture has yet been prepared to face the real consequences of the kind of grant system which is, in present circumstances, quite inappropriate to the sort of areas we are discussing in the national parks.
§ That is the background. The scale of the operation would inevitably be small because the numbers of areas in national parks and the number of persons concerned are not large for this particular purpose. The grant incentive is what causes the trouble—grant and prices; the whole economic system in these areas. But I would submit that there are two main reasons why the notification system by itself with no longstop of last resort is not satisfactory. One was touched upon by a number of noble Lords in the debate initiated by the noble Viscount, Lord Ridley, and that of course is the matter of equity between neighbours; between different farmers or landowners. If the majority of them are persuaded to play the game but you have 518 someone who refuses to do so, then, under the Bill as it now stands, you have no remedy. If you have a really awkward customer who sticks out, there is nothing under the Bill at present that you can do. This seems to us inequitable and likely, in certain circumstances, to lead to great difficulties and to be very unfair to those farmers and landowners who have agreed to co-operate in a voluntary system. I do not think that this element should be overlooked.
§ There have been quite exceptional circumstances on Exmoor. I do not propose to go into the whole Exmoor saga. Even there it has taken a long time with tremendous effort before Lord Porchester, during Lord Porchester's investigation, and after Lord Porchester. I would emphasise that, in spite of all this effort and all the emotion which has been generated on Exmoor, the position still remains—and this is the second reason why one needs a longstop—that the bargaining power of the authority which is endeavouring to obtain voluntary agreements (which is the policy of the Government, and to which I shall return in a moment) is bound to be impaired if, at the end of the day, they are completely impotent.
§ That is the position under the Bill and, although we have been told by a number of speakers that the area of land which has been ploughed up or otherwise damaged without the consent of the national parks authority has, since the Porchester investigation, been very small, and while that may be true, behind that stands the bargaining process; and that is exactly what it is. It is not that other land has not been ploughed up but that other land has not been ploughed up with objection because the NPA realised that it had to bargain; in other words, it had to compromise; in other words, it had to allow a certain area to be damaged, as we think in the context of a national park, to save the remainder.
§ It is in that bargaining situation that we must recognise, if we have any sense of reality at all, that if you are trying to bargain on a purely voluntary basis and at the end of the day you have no weapons left in your hand, if at the end of the 12 months the person concerned says, "I am sorry but I am not going ahead with this" and you have no remedy, then you are apt to compromise to avoid that situation and therefore you have to allow a good deal of sometimes very important landscape to be partly damaged for the sake of getting an ultimate bargain so you can save the rest. It is that situation which those of us supporting the amendment suggest is not satisfactory because we do not believe that the bargaining can be carried out if, at the end of the day, the NPA or Minister as the case may be has no further weapons in hand.
§ It has been said on innumerable occasions in discussing the Bill that we are all in favour of going to the uttermost on the voluntary basis, and there is no need for me to reiterate that; it has been said time and again. Recently the noble Earl, Lord Avon, said, I thought rather plaintively, that the Government liked voluntary agreements. One can only raise one's eyes to heaven and say, "Sancta simplicitas; of course they do". Who would not? We all prefer voluntary agreements, but, like the noble Lord, Lord Foot, I am haunted by 1968. Perhaps I may be allowed to tell the noble Earl, Lord Avon, that he is probably now in the position I was in in 1968 as a relatively newly-fledged Minister of 519 State at the Welsh Office on the Countryside Bill of that year. I think the noble Earl is in the position that I was then; I believed what they told me. What happened then? We were assured by the noble Lord, Lord Kennet, that all would be well and we need have no apprehensions. We had the situation on Exmoor that finally had to be handled by Lord Porchester because things had got so bad.
§ I am well aware that many things have happened since Porchester and that the situation is better, but I do not believe it is realistic to proceed as the Government wish without having some ultimate longstop. We are prepared to have this kind of longstop to prevent ultimately the destruction of historic buildings, and the present Secretary of State for the Environment has made a few quite dramatic interventions in this field. If we are prepared to have an ultimate longstop in that sphere, surely it is illogical to refuse to have a comparable longstop, a last resort power, for ex-ceptionally valuable historic landscapes. What is the difference in principle between the two? I am not an archaeologist, but I know that for some people the remarkable richness of bronze age and other archaeological remains and some of our hitherto undisturbed moorland, now possibly to be ploughed up, are as exciting as a Palladian building is to some of the rest of us.
§ The final argument adduced by the noble Earl, Lord Avon—Lord Avon's longstop, if I may so call it—was that if the worst really did come to the worst, the Government of the day, if they recognised that the purely voluntary system had failed, could legislate, and he said that it would take only three or four clauses in a short Bill. How often have we heard that phrase both here and in the other place from people who had not the slightest possibility of getting their legislation through? Admittedly Governments are in a stronger position than a private Member. Nevertheless, one can see perfectly well that somebody who was determined to resist could tag along until near the end of the 12 months and then, with a good legal adviser experienced in parliamentary matters, could say when the final crunch came, "No, I am not going to agree with you after all". That could be said just before the Summer Recess, when the legislative timetable was particularly full; and what would happen then?
§ To my mind this is either a bit of innocence or hypocrisy, I am not sure which, because, if one is prepared, as the noble Earl himself said, to legislate for this, then what is to prevent the Government putting a provision in the Bill now but which could not be activated except by the consent of the then Secretary of State and if necessary by the Ministers who are referred to a number of times in the Bill, and which would bring in the Minister of Agriculture and the appropriate Welsh Minister as the case might be? In other words, it would not just be routine.
§ If the matter were being taken seriously, something would be put in the Bill now and the noble Earl would not be playing, as it were, with the House by saying, "If it were to go wrong we could have a nice little Bill with three or four clauses which could be rushed through". That sort of thing can be done with constitutional matters affecting, say, Zimbabwe, but it 520 cannot be done if a moorland is about to be ploughed up. I have been long enough at both ends of Parliament to know that that sort of thing is not on. I do not feel that the matter has been seriously enough considered, and I must tell the noble Earl, Lord Avon, that I thought it was a rather flippant suggestion on his part.
§ I still believe that money is the root of all evil and that if it were not on the one hand for the grants and on the other for the problems of compensation in these situations, we should not have this difficulty over moorland conservation orders. In this context, I should like to ask the noble Earl a question. He mentioned that one of the major difficulties, or sticking points, encountered in discussions with farmers on Exmoor—I image it would apply in other national park areas if the situation arose; the North York moors is an obvious park where this situation has arisen and could arise again, and I believe the noble Viscount, Lord Ridley, mentioned Northumberland, too—had been that by voluntary agreement one could obtain annual payments, whereas the proposition in respect of a compulsory agreement (the buying out of a place) would be that one would have a once-for-all sum.
§ Although a lay person in this matter, I should like to know why, if one can get a voluntary management agreement and provide in that for annual sums, there should be any reason why a similar arrangement cannot be made with a compulsory management agreement. Of course, one would resort to that only if all attempts at the voluntary management agreement had failed. I would hope to be told that that point has been very thoroughly considered and that there is some insuperable difficulty, of which I at least am not aware.
§ I do not wish to weary the House further, but to many of us this is a very important matter indeed. We do not believe that the Government have faced the real difficulties with the kind of resolution and courage we had hoped for, not least following the words uttered by the present Secretary of State for the Environment. I shall not quote them to your Lordships since you should now know them by heart. The Secretary of State for the Environment, in June 1979—in the first flush of enthusiasm upon his appointment to office—gave us every expectation that the kind of situation that we are discussing in the amendment would be met with determination and courage. It is that expectation that we are asking the present Government to fulfil. My Lords, I beg to move.
§ 3.11 p.m.
§ Lord Craigton
My Lords, in these debates we have spoken always about Exmoor, and the nation was horrified when it was learnt from the Porchester Report, that in the 29 years up to 1936 12,000 acres of moorland were lost. But I have the recent figures from the Council for the Preservation of Rural England; the noble Baroness who has just spoken is the chairman for the Council for the Preservation of Rural Wales. The CPRE has given me the latest figures from the Countryside Commission, and I must confess that I did not realise that the problem regarding Exmoor, bad as it is, is nothing compared with the problem of the North Yorkshire moors. The national 521 park authority for that area published figures in 1980. Whereas the loss on Exmoor over 29 years was 12,000 acres, in Yorkshire in the 25 years to 1975 there had been a loss not of 12,000 acres, but of 37,000 acres. Since 1975 there has been a further loss of 4,000 acres on the North Yorkshire moors, compared with 650 acres on Exmoor. So this is a very serious problem, which is much more widespread than I had realised.
In a previous amendment, on behalf of all the conservation bodies that CoEnCo represents, I declared our lack of faith in voluntary agreements as a permanent protection for land which should be preserved for future generations, unless—as the noble Baroness said—there are also powers to enforce the protection required. Your Lordships disagreed with that point of view by a margin of only 109 votes to 100 votes; so we were very nearly there. This is the case here. There is to be an offer of a voluntary agreement before a moorland conservation order is made. That is right and fair; that is how it should be. The amendment reproduces what would have been the position had your Lordships accepted our amendment on SSSIs, which was rejected by such a narrow majority. We now have another opportunity to deal with this matter, which is far more serious than I had thought. I hope that your Lordships will take the opportunity.
Earl De La Warr
My Lords, I disagree with the amendment as strongly as I disagreed with the amendment of my noble friend Lord Ridley at the Committee stage. My disagreement is not really surprising, since, as the noble Baroness said, the wording now is exactly the same, except for the four lines which, as she explained, add the condition that a farmer must have been offered and have refused an agreement before a moorland conservation order can be applied. For reasons which I shall explain a little later on, I cannot, I fear, help feeling that this modest addition is designed to make the House feel that there has been added something of some substance that will alter the sense of the amendment. But farmers will perceive not one ha'porth of difference—and they would be right, because the result does not differ in any way. So we are, I repeat, debating the same amendment as last time, and we shall, I fear, have to go over some of the same ground again.
I expect that your Lordships are already aware—this point was mentioned last time—of the enormous amount of work that has been going on on Exmoor. in particular in the last few years, in creating the framework for a system of voluntary notification, voluntary delay and voluntary agreements. Your Lordships will also know that there is about to be published—it has not previously existed—a sophisticated and reliable system of assessing compensation, where a farmer agrees to deny himself the financial benefit of increasing his acreage of inbye at the expense of his heathland. The system is based on annual payments for loss of profits, and it has been worked out by the University of Exeter, the landowners, the farmers, and the Exmoor National Park Committee.
What does the amendment say about compensation? The new, small addition says nothing at all, and so inevitably we come back to the moorland conservation method. I appreciate that the noble Baroness has 522 made references to the possibility of a difficult method of payment, but there is nothing here about that. What is included is the moorland conservation method only, which, as the noble Baroness knows, is totally different from the annual loss of profits basis, which I have briefly described—
§ Baroness White
My Lords, since the noble Earl is obviously an expert on this subject, perhaps he can answer the question that I put to the noble Earl, Lord Avon. Is there any reason why that method of payment should not be used where there is a compulsory, rather than a voluntary, management agreement?
Earl De La Warr
My Lords, I am much obliged to the noble Baroness. I do not wish to be thought to be dodging questions, but I really do feel that that is something that my noble friend Lord Avon would himself wish to deal with. That is another way of saying that I know my place.
The moorland conservation method is spelt out in the amendment. It provides for a one-off payment based on the familiar "before and after" method of land valuation. It relies upon an opinion—albeit a professional one—of the reduction in land value. The land compensation code was designed to cover acquisition cases and it it totally unsuitable when applied to partial loss of rights. It is more complex, more arbitrary, and is far less favourable to the farmers.
The Exmoor basis, on the other hand, is tailor-made for dealing with compensation for loss of rights, rather than loss of ownership, and I do not blame the farming community for fearing that there would be irresistable pressure on the county valuer, in order to save money—which is his duty—to fall back whenever he could on the compulsory method of valuation, thus effectively destroying the whole of the voluntary system of compensation. Indeed, I agree with the farmers that that is exactly what would happen.
The noble Baroness referred to the question of bargaining and said that the local authority's power would be impaired. As I understood it, she said it was wrong to bargain as between equals; that the local authority must have the ultimate right. Well, that is her view; it is not my view of what bargaining means. Bargaining is a voluntary activity carried out between equals.
§ Baroness White
My Lords, with great respect, I would point out that the situation is not equal in the sense that in the last resort the farmer can hang out, whereas the local authority has no further power after the 12-months period has expired.
Earl De La Warr
My Lords, I take that point. On the other hand, one can look at it in exactly the opposite way and say that one must have the odds in favour of the local authority. So be it; this is a matter of opinion. We have discussed lost acreage before, and, not surprisingly, it has come up again, though I must 523 say that less reference has been made to it this time, particularly as far as Exmoor is concerned. But there is one figure that I think we ought to use, and in 1981 it is the only figure which in my opinion is valid. It is that during the last four years just 66 acres were ploughed or otherwise improved without the approval of the Exmoor National Park Committee; 25 acres were ploughed without notification; and 41 acres were limed and slagged following notification but without agreement. I find not too much indication there that the heathland and moorland of Exmoor are on the point of disappearing at the hands of the avaricious farmers. I am sure your Lordships will agree that the indication of that figure is exactly the opposite, and is that things are very stable and under good control already.
My noble friend Lord Craigton has said that we ought not to be debating Exmoor alone but that we should be looking at all moorlands in all national parks, and I think there is much to commend what he says. There are other noble Lords who are much more expert than I am about other national parks, and I know that my noble friend Lord Avon will wish to deal with this to some extent. But could not all the things that I have said about Exmoor and the voluntary approach apply on a wider front? Is not Exmoor a first-class example of what can happen on a voluntary basis in any national park? It is what is going on in the case of Exmoor that encourages me to believe, and to believe very deeply, that the voluntary method is the right one wherever it may be. For make no mistake about this, my Lords: once you insist on an ultimate power, the voluntary spirit is killed, just as night follows day—and that is where we come to the heart of the matter. So keen is the noble Baroness and her noble friends to ensure that nobody, but nobody, gets away that she is prepared to risk the destruction of the whole, growing movement among farmers for voluntary conservation. She is prepared to nip it, not in the bud but as it is coming into full flower.
It is for that reason that I so dislike the amendment, for when the chips are down it is not the law but the goodwill of the farmers upon whom we have to depend. If you lose that, my Lords, you lose it at your peril. So I believe that there is not a narrow divide between us on this clause. There is a great yawning abyss, and I beg your Lordships to bear this motivational aspect, along with other things, very much in mind before deciding which way to vote on this amendment, of which I for one so profoundly disapprove.
My Lords, I was waiting in the hope that everything would have been said before I needed to get up to speak for this amendment as one of the sponsors, but I think it may be helpful to your Lordships if I intervene very briefly at this stage. I have very little to add which is original, even in terms of today's debate on Report, but I should like very much to supplement one or two of the things which have been said by the noble Baroness and to counter one or two of the things which have been said by the noble Earl, Lord De La Warr.
As regards what the noble Baroness, Lady White, had to say to us, I should like to try to put this in proportion. What is being asked for in this amendment 524 is really quite a small thing in comparison (and the comparison has been made) with the thousands of SSSIs for which full protection was asked and so nearly given during the debate last Thursday—100 votes for and 109 against. All we are asking for—and we very nearly got it, even on a Friday afternoon, in the state of weariness that some of your Lordships were in at that time, on the sixth of those long tedious days in Committee—is full protection for a few, strictly defined critical areas (areas which have been approved as critical areas by Parliament) in those of the 10 national parks—and there are only 10 of them—in which there is significant and characteristic moorland and heath. That is all we are asking, and my own feeling is that I simply cannot accept the view taken and put to your Lordships by the noble Earl, Lord De La Warr, that to have full protection as a longstop, as a last resort, for those limited areas in certain circumstances will forfeit the goodwill of the farming community.
It has not been so, my Lords. The noble Baroness mentioned historic buildings. I should like to add an area which I think, with respect to the noble Baroness, is possibly more germane to what we are talking about—access orders. We have had access orders on the statute book for many years. I do not know of one which has in fact been enforced, but the effect of them has not been to lose goodwill; it has been to strengthen the hands of the local authority negotiating access for the public to ground across a farmer's land. This is a very sensitive area, but that has been done with great success. It has not followed as night follows day (in the words of the noble Earl) that we have lost goodwill over that.
Another point that has not been made this afternoon—and I am guilty of having made it two or three times already in the long run-up to the decision on this Bill—is that we are legislating in the long term. Of course there has been good progress in coming to voluntary agreements on Exmoor, and of course we have the Government's view that it would be preferable to have voluntary agreements; but those voluntary agreements are short-term agreements, and on Exmoor, to my knowledge, they are very short-term agreements in one or two cases that have been negotiated. In this Bill we are negotiating for the next decade at least, and that period is going to be one of great change. To state the obvious, there is going to be change in management, in ownership and in tenancies of farms; there is going to be change in management techniques; there is going to be change in agricultural technology; and there is going to be the continuing incentive to plough land for agricultural purposes. There is going to be change in the whole pattern of our society—more leisure (I think that is generally agreed), more ability to use that leisure and a greater need for outlets of interest in the countryside for more people. I think those are fairly telling arguments for getting on to the statute book full protection for those limited areas that we have in our national parks, in which there is moorland which needs to be conserved.
I regard this as a challenge or test of the Government's seriousness in wishing to fulfill, to conserve and to buttress the original intention for the national parks in the 1949 Act. Unwillingness to do so I really think puts the seriousness of the Government in that respect in some doubt. We were narrowly defeated 525 in a total of 96 votes which were cast in a poorly-attended and somewhat jaded Committee. The votes in favour of the amendment came from all quarters of the Committee, and I venture to hope that this afternoon, well-attended as we are, this amendment will be carried.
§ Viscount Ridley
My Lords, as I moved the original amendment at Committee, I should like to say that I have not changed my views at all. I think that the amendment before the House in the name of the noble Baroness, Lady White, and others is considerably better than my amendment and I want to support it. I am not going to repeat anything that I said last week; but a few things have happened since. First, the Somerset County Council and the Exmoor National Park Authority, having read the debate that we had, are still of the opinion that an amendment along these lines is desirable. Secondly, there has been a study of these matters by Dr. Parry of the University of Birmingham, who quoted the frightening figures in the North York moors, and, as my noble friend Lord Craigton has mentioned this, I shall say no more about that.
Finally, it is worth quoting from a letter to The Times last week written by the chairman of the Exmoor Society as a result of our debate. Part of it says:The Government through its agricultural policy is responsible for the ploughing up of Exmoor. As the annual subsidies are paid per animal, more intensive farming leads to larger payments. In 1978, subsidies totalled £1.3 million compared with £34,000 spent by the park authorities on conservation. Thus, the Ministry of Agriculture is paying for the ploughing of Exmoor at the same time as the Department of the Environment are offering grants to the National Parks Authority to prevent the ploughing of ExmoorWhile this absurd situation continues compulsory powers are needed, and I hope that we can all support the amendment.
§ Viscount Ingleby
My Lords, as I live in the North York Moors National Park and as I was abroad during the Committee stage, perhaps I may say a few words. The noble Lord, Lord Craigton, and the noble Viscount, Lord Ridley, both mentioned the figure of 37,000 acres which were converted between 1950 and 1975. As the noble Lord, Lord Derwent, knows, this was mostly an area of poor moorland, most of which was planted by the Forestry Commission and some of which went to farming. I should like to correct any impression that there may be that at the present time there is a danger of large parts of the park being converted. Between 1950 and 1975, the average rate—I have the same figures (provided by the Countryside Commission) as those to which Lord Craigton referred in front of me—works out at 1,500 acres per year. Between 1975 and 1980 it has slowed down to 800 acres a year and the rate at the present time is 245 acres per year, which is slightly less than 0.2 per cent. of the total moorland area.
I am against compulsory powers. It is a very delicate situation. I think that I can say that I love the moors as much as anyone, but I do not believe that what is heather now must be preserved as heather for ever more. On that basis, the national parks would still be forest, as they were after the disappearance of the Ice Age. Heather is very attractive at 526 certain times of the year but provides little in the way of food in the form of supporting sheep or grouse, and the soil deteriorates gradually due to the regular burning. It provides no shelter for man or beast and constitutes a high fire risk. Our national park committee, like all national park committees, I suppose, is not entirely popular. It depends on the goodwill of those who are responsible for day-to-day management in the park. For that reason, I feel it better to try to reach agreement on these matters rather than use compulsory powers.
§ Baroness Wootton of Abinger
My Lords, as a former chairman of the National Parks Commission and, subsequently, of the Countryside Commission, I should like to endorse what has been said about the great progress made by voluntary agreements, and particularly, as Lord Hunt mentioned, in relation to access agreements. The story has been the same all the way along in the activities of the Countryside Commission and the National Parks Commission before it. The aim has been to preserve what is of worth and value for the purposes of recreation and food production. The problem is that we get into the way of talking when we have compulsory powers in the background (as I think some noble Lords have been talking this afternoon) as though compulsion would be applied instantly to stamp down for ever the existing pattern.
The power of compulsion remains in the background and it has been the experience all along in other fields that it has been held out as though it were a threat to stop all voluntary agreements. But experience has shown that it has been the other way round. Voluntary agreements have been readily made and very often the existence of compulsion in the background has made people keener to proceed along voluntary lines. I hope we shall preserve the voluntary element and retain, only as a last resort and not as a first resort (which is the way it has been discussed this afternoon), the compulsion element.
§ Baroness Elliot of Harwood
My Lords, I shall not delay the House, but I feel very strongly against compulsory powers. People are talking as though farmers are not interested in conservation. We are interested in conservation and in preserving the beauty of the countryside and doing everything to get it used by the public in general, and also in developing it according to voluntary agreements. This idea that the farmers are all intent on ploughing up what is beautiful is rubbish. I have been farming for 40 years. I live quite near some of the parks in the north of England, in Northumbria, and we do not have any trouble. Everybody co-operates with everybody. I have not heard of a single person who has done something against conservation.
There may be some very particular conservationists—I had not met them before taking part in these debates in this House. But in the country where I live, we do not have any problems. There is the idea of starting with compulsion; although the noble Baroness, Lady Wootton, said this should be kept in the background. Why have it at all? Why not have goodwill between everybody? I am certain from all my experience of farming (and it has been a long one) that you will get 527 people co-operating. If you try to force people to do things, you raise people's objections. We do not want to plough up land that is best left as it is.
Why are the national parks people always supposed to be right? I had an experience—nothing to do with farming—where we offered (I am a Carnegie trustee) to do something which would have been a great asset to a national park whose identity I shall not disclose; and they refused. We did it somewhere else. We did it in a national park in Wales. It has been a great success. It is a pity to upset the excellent arrangements which exist between the farmers, communities and conservationists. I am strongly opposed to this amendment and I hope we shall defeat it.
§ Lord Foot
My Lords, I shall not detain the House for more than a minute. I should like to say to the noble Baroness, Lady Elliot, that, so far as I know, nobody who has supported this amendment and this proposition throughout the debates that we have had has ever suggested that the farming community are not interested in conservation. I have never heard that suggested by anybody. What we are concerned about—and this is what the noble Baroness does not appear to understand—is not the problem of dealing with the farmers who have a sense of responsibility; the problem is dealing with the very tiny minority who have no sense of responsibility and who, if they can, will pursue their own interests regardless of the broader public interest.
I want to say a few words about an argument that we have heard repeated over and over again during the course of these debates, not only upon this amendment but also when we were debating the SSSIs. An argument has been repeatedly advanced by the noble Lord, Lord Avon, and also by the noble Earl, Lord Ferrers, that if one introduces an element of compulsion as a last resort then one is automatically going to forfeit the goodwill of the farming community. I think that that is profoundly insulting to the farming community. They are not, in my experience and observation, unreasonable people. They do not claim that they of all people in the community should be released from any compulsory powers at all. They make no such absurd claim. It is irrational and indefensible in principle to suggest that, if a farmer does what he wants to do on his own land and is made subject to some legal sanction, that, however injurious what he may be doing is to the public interest, is unreasonable coercion. We have had this word "coercion" bandied about in these debates. It is a pejorative word.
If it is right to stipulate that a farmer is forbidden to plough up land where it is obviously against the general public interest and where Parliament has said that it should not happen, then it is as unreasonable to call that coercion as it is to describe as coercion the fining of somebody who drives without due care and attention. The second reason why I suggest that this argument about alienating the farming community is baseless is that it is manifestly unreasonable. I should like to occupy two minutes in spelling out to the House—because I believe this is still not understood—what has to happen, what long process has to occur, before the compulsory element is brought into play.
528 Under these amendments that the noble Baroness, Lady White, introduced, compulsion does not begin to enter into the matter until the Minister of Agriculture and the Secretary of State for the Environment have together decided that there is an area of land in one of the national parks—and, as the noble Baroness said, this is limited to national parks—so important that it ought to be designated as such. What standards will the Ministers apply when they come to make a designation order of that kind? This is not a moorland conservation order, this is the prior designation of land of particular value. I suggest that the standard they are likely to apply—and let it be borne in mind that the Ministry of Agriculture are going to have their say in this—is the one spoken of by Lord Porchester in his report, when he said:A category of land should be established where change from the traditional appearance should be resisted with the utmost determination. All, in other words, should be made as safe for all time as the uncertainties of both human and natural affairs may allow".Is not that the standard which the Ministers themselves are going to adopt before they begin to designate the land?
That is the first step. My Lords, what happens next? It is that that order made by the Ministers is subject to annulment by a resolution of either of the Houses of Parliament. There is that safety net there. If the Ministers have it wrong, if they have gone too far, either House can call them to correction under the Negative procedure.
When all that has been done, nothing stops the farmer who wants to develop his land—even when his land falls within one of these designated areas—from notifying the national parks committee that he wants to convert it. When he does that, under Clause 34 all the processes of negotiation and voluntary agreement come into play; all the things that the noble Earl, Lord De La Warr, was talking about, voluntary agreements arrived at by two parties arguing on an equal basis. All that comes into force and there is the process of negotiation. Then the Ministers or the national parks committee, if those negotiations fail, cannot make a moorland conservation order unless first of all—and these are the new words brought into the amendment—the national parks committee have offered a management agreement to the farmer, and that has been refused, or if there is reason to apprehend that the farmer is going to go ahead and convert the land without even giving the notification.
Then what is the next step in the matter, my Lords? Once that is done and once the order has been made, either by the parks committee or the Ministers, anybody who wants to object to it can do so. They have all the rights that anyone has under the planning law where a planning permission is applied for and is refused: they have all the powers to go before a Ministry inspector and have the case heard and then the Secretary of State either confirms or does not confirm the order. It is only if the order is then confirmed after all that long procedure that the farmer automatically becomes entitled to compensation.
It may be, as the noble Earl, Lord De La Warr, was saying, that the compensation provisions contained in these amendments are not all that they might be. Maybe they are not, but that can be cured very easily. 529 If only the Government would accept the principle of the last resort power, then they could if they wished and if they think that ours are unsatisfactory, introduce their own proposals for the compensation of the person who is denied the right to develop his land. It is only therefore at this very last resort that, if the farmer converts the land in defiance of the Ministers, in defiance of Parliament and in defiance of the national parks committee, he renders himself liable to a fine. It is an absurdity to pretend that the National Farmers' Union or the Country Landowners' Association are people so irrational and so unreasonable that they think this is coercion and is treating their communities unjustly. It is not an argument that we ought to hear in opposition to these amendments.
My Lords, I did not intervene in this debate when the subject was raised at the Committee stage. I want to speak for only one minute now and raise two points, one of which has not been sufficiently emphasised. I believe that farmers and landlords are going to be under greater pressure to maximise their assets than they have ever been since the 1947 Act came into being. We must realise that there will be very much greater pressure on farmers in the future to maximise their land to be able to carry more sheep and cattle. That is a danger that we have not had emphasised enough in this debate. Owing to the political state of farming the matter is more urgent now than it was.
The second point relates to the residual powers which some people seem to fear so much. To my mind, there is a very good example why those fears are exaggerated. For a very short period I had the honour to be chairman of the Forestry Commission. Ever since the Forestry Commission was founded in 1919 it has had compulsion powers in the background. I am not quite sure whether they have been used. I tried to confirm this with a member of the commission just before lunch. I believe that, if they have ever been used, the number of times could be counted on the fingers of one hand. The fact that there were residual powers to use compulsion has not invalidated all the voluntary acquisitions and agreements made with the Forestry Commission and I think perhaps that has not been emphasised quite enough in this debate. I do not want to say more, my Lords.
§ 3.51 p.m.
§ Lord Melchett
My Lords, if I may, emboldened by the presence of the noble Lord the Chief Whip, I should like to enter a small plea on behalf of the two Front Benches and those other noble Lords who intend to be here tonight for the discussion of Amendment No. 183, which is the last one on the Marshalled List, because it is my understanding that we should finish the Bill today. We had two substantial opening speeches from my noble friend and from the noble Earl opposite on this amendment, which we discussed at great length at Committee stage. It is a very important matter. It seems to me, first, that a number of the arguments raised at the Committee stage have been met in the new version of the amendment. Secondly, all that can be said in favour of it and I dare say most of what is to be said against it—although the noble Earl still has to speak—has been said; and it 530 might be the wish of the House to come to a decision on the matter as soon as possible. I hope that this time the House will come to the right decision.
§ Lord Kennet
My Lords, in spite of the plea made by the noble Lord, Lord Melchett, I rise for one minute, because the noble Baroness, Lady White, took us back to the remote days of 1968, when it was my responsibility to present the 1968 Countryside Act to this House. She said that I had told the House it would be all right with voluntary arrangements and that we should not press for compulsory arrangements. She is right: I did say that and I very well remember the arguments coming from the farming side while the Bill was being drafted. They said: "Give it a try. We too are alarmed at the loss of wild heath in the national park and we too are alarmed at the rate of ploughing. Give the voluntary system a try and if the rate of loss does not come down under that system, then we can always put up with compulsion introduced later by Parliament".
I thought at that time this might be an error of judgment. I think all the Ministers concerned felt that, but we agreed to give it a try. We defended the voluntary system against some objections from conservationists who at that time would have liked to go straight to compulsion. Here we are 13 years later and I think the figures we have heard today are pretty conclusive. It has not worked. I think now that it was an error of judgment on our part in those days to go along with another decade—because we knew it would be a decade—of the voluntary system. I submit that the system has not worked well enough and I ally myself posthumously, as it were, with those who now seek to introduce compulsion. I hope very much that the Committee will agree to this today.
§ The Earl of Onslow
My Lords, just before the noble Earl speaks I should like to ask this one question. Since December 1979, 1,319 acres of moorland on Exmoor have been notified as being ploughed up; that is four acres every working day. If that agreement is given by them to plough this up, or it is not given and it is not covered by voluntary agreements, how much is it going to cost? Is the voluntary agreement going to cost more than compulsion? If it does, then there is no harm and it shows that compulsion is necessary. If not, it shows that compulsion is going to do no harm. As the noble Lord, Lord Foot, said, we are not talking about people moving in straight away with compulsion. We are talking about the ultimate argument of the Government right in the background. The other point one should make is this. I do not believe all men are saints. Some people do; but I think that human nature has shown that, on the whole, they are not.
§ Lord Tranmire
My Lords, I was not present at the Committee stage: I was away convalescing. I should like now to put two points on this amendment. First, as to the North Yorkshire moors, my noble friend Lord Craigton talked about the loss of 37,000 acres in the last 15 years. In fact, if you go back in history a large proportion of this moorland was agricultural land and at the time of the Napoleonic wars large parts of the North Yorkshire moors were growing 531 wheat. If you go further back you will find on the whole of the Yorkshire moors the Beehive Querns. This shows that it was then all arable land.
Why has there been this change? Partly because with tourism sheep on the open roads have been destroyed. During the last 10 years we have had 500 sheep a year slaughtered by motorists on two moorland roads. As a result, farmers give up sheep farming and their only hope is to use the plough to bring it back to what it was before agricultural depression succeeded the Napoleonic wars. The noble Baroness, Lady White, said that money is the root of all evil, but I beg this House to realise that we are concerned with a man's livelihood. Small farmers had small flocks of sheep and now are turning to cattle on the hills and to arable land. With great difficulty we are getting them to co-operate as best they can with the park authority in North Yorkshire and also with the archaeological side. By voluntary agreements you will get that.
That is the benefit of the present Clause 34. If we then put a pistol to the head by means of the compulsory powers of this amendment we shall exacerbate the relationship between the farmers on those moors and the authorities who are seeking to conserve the countryside. Bracken is growing every year on the North Yorkshire Moors. Somehow, by spraying or ploughing, we have to eradicate the bracken and make that land productive. I hope that nothing this House does today will destroy what are we trying to do to get co-operation between the farmers and the conservationists.
§ The Earl of Avon
My Lords, the noble Baroness, Lady White, was very kind in her introduction. I nearly interjected when she said that we were last discussing this matter on Friday the 13th, because of course we have now passed Friday, 13th March, and on that day we very nearly discussed it again but stopped in time at 11 p.m. the day before. The noble Baroness also said that I ought to be looking for a longstop. I am not quite sure in which place in the cricket field I would need to be, if I needed a long-stop—whether I would be a wicket-keeper, in which case I might be offended; whether I might be a bowler, in which case I might be slightly offended; but as a batsman I do not think I would mind too much.
Many people have commented about the Government's seriousness and realistic approach. We believe that what we are doing is realistic and we also believe that the voluntary system is working. I should like briefly to take up what the noble Lord, Lord Kennet, said when he produced his statistics from 1968 on. I am really going back to 1977 on, when we went into this voluntary agreement in a big way. We believe that since 1977 it has been working and that is why the Department of the Environment, in particular, is happy to see the way ahead without a compulsory order being necessary.
These three new clauses introduced by the noble Baroness, and the associated amendments, are basically similar to those which we debated and rejected in Committee. As the noble Baroness pointed out, the differences of significance are, first, that they include a provision that the national park authority must offer the farmer a voluntary management agreement 532 before the compulsory moorland conservation order power would be usable. Secondly, forestry as well as agricultural operations carried out on moor or heath land would be brought within the scope of the power.
The Government remain steadfastly opposed to these new clauses and associated amendments. I explained our reasons in some detail at Committee stage and I do not propose to detain the House by restating them today, particularly as many of them have been quoted. All I will say is that the position in Exmoor is exceptional, as we all agree. The farming community there is showing every sign of co-operating to the full in the voluntary approach to moorland conservation. I believe that this spirit of goodwill would be in jeopardy if the House were to write these compulsory provisions into the Bill, and this could have frightening consequences for Exmoor. I am convinced that, by making these changes to the Bill, we shall prejudice the very things we hold dear.
The argument has been adduced that, leaving aside Exmoor, it would be a prudent step to incorporate the provisions in order to be ready to deal with a similar problem arising in other national parks. But in no other national park is the position so exceptional. The North Yorkshire moors have been mentioned, and various statistics have been quoted, particularly by my noble friend Lord Ingleby. According to my statistics, in 1980 the area of moorland and open land remaining was over 195 square miles and the rate of loss over the previous five years was ½ per cent., which is slightly up on my noble friend's figure of 0.2 per cent.; 1.9 square miles were converted to agriculture in this period and another 4.7 square miles were converted to forestry.
At this rate of loss, it will take many years before the extent of moorland remaining in the North Yorkshire moors can be regarded as having reached a critical stage. May I say together with other noble Lords, that I myself was brought up in North Yorkshire in my youth, and I would miss the heather very much, as well. The Government will, of course, be prepared to make a moorland notification order in any national park if, at any time, it becomes clear that such action is warranted.
During the Committee stage, one or two figures were bandied about, including something which my noble friend Lord Onslow raised just now. I think we discussed in Committee the fact that if we rely on management agreements in Exmoor, we may find the public paying an awesome figure; I think that £600,000 a year was mentioned. This, however, was based on 40,000 acres. But if I may draw your Lordships' attention to the Porchester Report, that found that only 12,800 acres were theoretically at risk. Even if all this had to have management agreements, which is extremely unlikely, and even if they all cost the same as the one which was quoted—which is not certain—the figure would, of course, be even less than one-third of the mythical £600,000. We also talked about management agreements being more expensive. This is not really so, because it is obviously cheaper to make an annual agreement than to pay out the lump sums which would be required all at once. It was also said that management agreements do not last long enough, but 20 years is quite a good lease even if there are break clauses in that lease.
533 The noble Baroness, Lady White, mentioned the subject of compensation. I am informed that, under the present compensation code, there is provision for capital sum payments only. Capital sum compensation applies to all planning decisions, and it applies throughout the whole field of compensation. There also would be practical difficulties in attempting annual payments.
I think it was the noble Baroness, Lady David, who said in Committee that she thought there might be trouble over the question of compensation. Usually, a farmer does not want to part with the rights to his land in exchange for money that will not buy him other land at all easily. With management agreements, payment terms will no longer be without guiding rules. A major fault which Lord Porchester spotted is being removed by the Somerset County Council's agreement with the CLA and the NFU. On the other hand, as I understand it, moorland compensation orders would provide also a lump sum, but not annual payments which a farmer often wants. I hope that our case is clear. I spoke at some length in Committee and I hope, in view of what I have said, that the House will decide to reject these new clauses and the associated amendments.
§ Baroness White
My Lords, the only point that I am still not entirely clear about is the point on compensation, where the noble Earl quite properly said that the present arrangement would be for lump sums only. It appears to me that that is not necessarily immutable. He later said that there might be some difficulties. Every Government says that there are difficulties about changing arrangements. I do not believe that that is an insuperable argument for substituting ultimately, if necessary, a compulsory management agreement, if that seems to be the most suitable thing to do. So I do not think that his argument was the least conclusive. I think that we want to come to a decision, so I shall not comment, if noble Lords will forgive me, on any of the other points that have been made in this interesting debate.
§ 4.5 p.m.
§ On Question, Whether the said Amendment (No. 173D) shall be agreed to.
§ Their Lordships divided: Contents, 91; Not-Contents, 97.534
|Ailesbury, M.||Chorley, L.|
|Airedale, L.||Clancarty, E.|
|Amherst, E.||Collison, L.|
|Ampthill, L.||Cooper of Stockton Heath, L.|
|Amulree, L.||Cottesloe, L.|
|Ardwick, L.||Craigton, L.|
|Avebury, L.||Crowther-Hunt, L.|
|Bacon, B.||David, B.|
|Balogh, L.||Denington, B.|
|Banks, L.||Donaldson of Kingsbridge, L.|
|Beswick, L.||Elwyn-Jones, L.|
|Blyton, L.||Fletcher, L.|
|Boston of Faversham, L.||Foot, L. [Teller.]|
|Briginshaw, L.||Gaitskell, B.|
|Brockway, L.||George-Brown, L.|
|Bruce of Donington, L.||Gibson, L.|
|Buxton of Alsa, L.||Gladwyn, L.|
|Byers, L.||Goronwy-Roberts, L.|
|Caradon, L.||Gosford, E.|
|Greenwood of Rossendale, L.||Rathcreedan, L.|
|Grey, E.||Ridley, V.|
|Hale, L.||Robbins, L.|
|Hampton, L.||Ross of Marnock, L.|
|Hanworth, V.||St. Davids, V.|
|Hayter, L.||Segal, L.|
|Hooson, L.||Shinwell, L.|
|Hunt, L.||Sligo, M.|
|Janner, L.||Somers, L.|
|Jeger, B.||Spens, L.|
|Kennet, L.||Stamp, L.|
|Killearn, L.||Stedman, B.|
|Kilmarnock, L.||Stewart of Alvechurch, B.|
|Kinloss, Ly.||Stewart of Fulham, L.|
|Leatherland, L.||Stone, L.|
|Leonard, L.||Strabolgi, L.|
|Listowel, E.||Strauss, L.|
|Llewelyn-Davies of Hastoe, B.||Taylor of Gryfe, L.|
|Loudoun, C.||Taylor of Mansfield, L.|
|Melchett, L.||Underhill, L.|
|Mersey, V.||Waldegrave, E.|
|Northfield, L.||Wallace of Coslany, L.|
|Onslow, E.||Wells-Pestell, L.|
|Oram, L.||White, B. [Teller.]|
|Peart, L.||Wigoder, L.|
|Phillips, B.||Wootton of Abinger, B.|
|Ponsonby of Shulbrede, L.|
|Adeane, L.||Home of the Hirsel, L.|
|Alexander of Tunis, E.||Hood, V.|
|Allerton, L.||Hylton-Foster, B.|
|Alport, L.||Ilchester, E.|
|Auckland, L.||Ingleby, V.|
|Avon, E.||Kemsley, V.|
|Balfour of Inchrye, L.||Long, V.|
|Bellwin, L.||Lonsdale, E.|
|Belstead, L.||Lucas of Chilworth, L.|
|Birdwood, L.||Lyell, L.|
|Burton, L.||Mackay of Clashfern, L.|
|Caithness, E.||Macleod of Borve, B.|
|Campbell of Croy, L.||Mancroft, L.|
|Cockfield, L.||Mansfield, E.|
|Craigavon, V.||Margadale, L.|
|Cullen of Ashbourne, L.||Masham of Ilton, B.|
|Daventry, V.||Massereene and Ferrard, V.|
|De Freyne, L.||Middleton, L.|
|De La Warr, E.||Monk Bretton, L.|
|Denham, L. [Teller.]||Mowbray and Stourton, L.|
|Derwent, L.||Murton of Lindisfarne, L.|
|Digby, L.||Newall, L.|
|Donegall, M.||Northchurch, B.|
|Drumalbyn, L.||Nugent of Guildford, L.|
|Duncan-Sandys, L.||Orkney, E.|
|Ebbisham, L.||Peel, E.|
|Eccles, V.||Portland, D.|
|Effingham, E.||Reigate, L.|
|Ellenborough, L.||Renton, L.|
|Elliot of Harwood, B.||Romney, E.|
|Elton, L.||St. Just, L.|
|Faithfull, B.||Sandys, L. [Teller.]|
|Ferrers, E.||Savile, L.|
|Feversham, L.||Selborne, E.|
|Fraser of Kilmorack, L.||Skelmersdale, L.|
|Gainford, L.||Soames, L.|
|Gibson-Watt, L.||Stanley of Alderley, L.|
|Glasgow, E.||Strathcarron, L.|
|Glenkinglas, L.||Strathclyde, L.|
|Gormanston, V.||Strathspey, L.|
|Gowrie, E.||Suffield, L.|
|Gridley, L.||Swinton, E.|
|Grimthorpe, L.||Terrington, L.|
|Hailsham of Saint Marylebone, L.||Tranmire, L.|
|Vaux of Harrowden, L.|
|Halsbury, E.||Vivian, L.|
|Hawke, L.||Westbury, L.|
|Hemphill, L.||Wise, L.|
|Henley, L.||Yarborough, E.|
§ Resolved in the negative, and amendment disagreed to accordingly.535
§ [Amendments Nos. 173E and 173EA not moved.]
§ Clause 35 [Grants and loans for purposes of National Parks]:
§ 4.14 p.m.
§ Baroness David moved Amendment 173EB:
Page 32, line 8, at end insert—
(" (3) Without prejudice to the generality of subsection (2) above, the council shall ensure that any person receiving a grant or loan under this section in respect of premises to which the public are to be admitted, whether on payment or otherwise, shall, in the means of access both to and within the premises, and in the parking facilities and sanitary conveniences to be available (if any) make provision, insofar as it is in the circumstances both practicable and reasonable, for the needs of members of the public visiting the premises who are disabled.").
§ The noble Baroness said: My Lords, I spoke to this amendment, together with Amendment No. 173YA, last week. The principle was accepted, so I beg to move.
§ On Question, amendment agreed to.
§ Lord Melchett moved Amendment No. 173F:
§ Leave out Clause 35.
§ The noble Lord said: My Lords, I put down this amendment to give me an opportunity to raise with the Government the question of the Norfolk Broads. I gave the noble Earl notice that I intended to do this at the Committee stage, but we reached this part of the Bill very late on one day or another—I cannot remember which—and the general view was that as we were going at such breakneck speed we ought to leave this matter until Report.
§ This clause provides powers for the purposes of national parks. I want to raise with the Government the problems and difficulties which are being faced by all those who take an interest in the area of the Norfolk Broads, notably by the Norfolk County Council and the other organisations which make up the consortium which is currently responsible for that area, and in particular the financial problems which they face. I shall not delay the House with a long exposition of the importance of this area, but would like to put briefly on the record from the nature conservation point of view that the Ramsar Convention of 1976 recognises areas of the Bure Marshes, 400 hectares, and Hickling, Horsey and Martham, 900 hectares. Those are two of the 13 Ramsar sites which are recognised in the United Kingdom. In the Nature Conservation Review, which is the list prepared for the Nature Conservancy Council, of the top 700-plus sites in the United Kingdom, there are four grade 1 starred sites, seven grade 1 sites, and two grade 2 sites, a total of nearly 3,000 hectares, all in the Norfolk Broads area. In addition, there are 450 hectares of local nature reserve. And 2,100 hectares are designated as sites of special scientific interest at 18 different spots in the Broads.
§ The landscape significance of the Broads goes without saying. It is a unique mixture. This is borne out by the recreational significance of the area. There are 200 kilometres of lock-free navigation, with 14 associated navigable lakes. It is the single most important location for boat cruising holidays in the United Kingdom. There are now over 2,800 hire cruisers registered on the system. It is estimated that 536 annually about one-quarter of a million people spend their holidays in the Broads. In addition, there are all those people who are interested in sailing, rowing, canoeing and fishing. There are 8,000 private boats registered for use on the system. In other words, the Norfolk Broads area is of major importance from the nature conservation, landscape and recreation point of view. Taking all those things together, it is one of the most important areas in the entire country. This importance has been recognised over a very long period of time, both in the Dower and in the Hobhouse Reports. It was always one of the areas which was envisaged as a likely candidate for national park status.
§ As noble Lords will know, a national park has not been designated, not because the area is intrinsically not of national park quality but rather for administrative reasons and because it was felt that many of its problems could be more effectively dealt with by the local consortium of planning, water and navigation authorities. Having taken that decision, particularly for the local authorities involved it seems to me that it is desperately important that a success should be made of it. One of the most important things, in the view of all those concerned, is that the Government should give an indication that they are satisfied that the broadland area, although it is not a national park, is of national park quality and status in terms of the things I have set out—the nature conservation importance, the landscape importance and the recreation importance—and an assurance, which I hope the noble Earl will be able to give to your Lordships' House today, that they recognise the importance of this area and that they will be acting on it.
§ Because this did not come up at the Committee stage, the noble Earl kindly wrote to me, and in that letter he told me that the chairman of the Countryside Commission had written to the Secretary of State at the same time as I wrote to the noble Earl, saying that I should be bringing this matter up at the Report stage of the Bill. I understand that the chairman of the Countryside Commission has put forward proposals for the next three years, as a follow-up to the commission's initial involvement in the formation of the Broads' authority. I know that the commission has made a number of important proposals to which the local authorities, and in particular the Norfolk County Council, attach the greatest possible importance. So I hope that the noble Earl will be able to give me an assurance that the Government recognise the scope of the problems that the Broads face, and the importance of recognising, from the Government's level, the national significance of those problems and the national help that will he needed to help the consortium to sort them out locally. I beg to move.
§ The Earl of Avon
My Lords, I think this clause has been given a general welcome. The idea is that, although national park authorities have a general power to do anything to conserve natural beauty and a number of specific powers to do various things, they have never been empowered specifically to assist the activities of others who are also moved by conservation objectives, like farmers and landowners. There could be circumstances in which another party 537 genuinely wants to tackle an important job, but lacks the finance. This clause makes pooling possible; efforts and costs can be shared. This is the principle upon which the Countryside Commission assists countryside projects under their grant-aiding powers. It is not always appropriate for the Commission to do this in a national park. The National Park Authorities are part of local government, with their own financial responsibility and it will be up to them to consider in what instances to use the new power and what conditions to place on an offer or grant of a loan.
The noble Lord, Lord Melchett, has spoken eloquently about the parallel need for conservation of the natural beauty and the wildlife of the Norfolk Broads. I should like to speak for a minute or two on that subject. We are in no doubt about the importance of the Norfolk Broads, and we welcome the local government initiatives and the work of the Countryside Commission, which has resulted in the formation of a Broads Authority. The authority has now been functioning for about two years and it approaches the environmental problems of the area on a wide-ranging basis. It has been grant-aided by the Countryside Commission, which has recently put to the Secretary of State, as the noble Lord, Lord Melchett, said, a proposal for further financial assistance until the end of 1984. This would be a substantial commitment which would require adequate consideration with the Commission and between departments. We know that the local authorities concerned await the outcome with keenness but the implications have yet to be fully examined and assessed.
Concern about the environment of the Broads was emphasised at the Committee stage, and I am delighted to have had this opportunity to speak about the activities. As the noble Lord, Lord Melchett, knows, we are later going to discuss the inland drainage boards, so I will not mention them at this time; but I hope that what I have said will convince the noble Lord that the Government are watching this situation, that they do indeed give it a high priority and that they fully recognise the significance of the Norfolk Broads.
§ Lord Melchett
My Lords, I am grateful for what the noble Earl has said, particularly his last sentence, which seemed to me to go a long way towards meeting the concerns of those locally about having to face quite appalling problems and a number of conflicts of interest which give rise to great difficulties, while at the same time having to cater for the very large number of visitors to the area, who I think are welcomed by all concerned but who do bring some problems in their wake. I hope the Government will be able to give very speedy consideration to the proposals that have been put to them in connection with this area for the next five years, as the noble Earl has mentioned that the Government are doing, and that the conclusion they come to will be that, although there is some financial commitment being called for, this really is the very minimum that they can give to the area—unless the Broads are going to collapse under the weight of all the pressures on them and the quarter of a million visitors annually who go there for their holidays, as well as everybody concerned with the nature conservation and the amenity aspects of the area, they will 538 have nothing left for all those purposes. Alternatively, some more drastic steps will have to be taken to enforce conservation and other things on the area, which I do not think is the approach that the consortium at the moment wish to take. Having said that, I think that the noble Earl went a long way to meet the fears of those locally, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 173FA not moved.]
§ 4.26 p.m.
§ Lord Melchett moved Amendment No. 173G:
§ After Clause 36, insert the following new clause:
§ ("Amendment of National Parks and Access to the Countryside Act 1949
§ . The National Parks and Access to the Countryside Act 1949 is amended as follows:
- (a) in section 5(2), for the words "extensive tracts" there shall be substituted the word "areas";
- (b) after paragraph (b) of section 5(2), there shall be added the following paragraph:
- "(c) the extent to which, taken together, such areas are representative of upland, lowland, farmed, non-farmed, wetland, hill and mountain areas in England and Wales,";
(c) in section 6(1), after the words "commencement of this Act," there shall be inserted the words "within 12 months of the commencement of the Wildlife and Countryside Act 1981,".").
§ The noble Lord said: My Lords, this is a rather wider amendment about the national parks, which again was tabled at the Committee stage, but at the time it seemed to me that we were moving so quickly that there was no opportunity to give it reasonable consideration and therefore I withdrew it then and tabled it again at this stage. I am afraid it is one of the victims of the breakneck speed at which we tried to take some points in Committee, to meet the wishes of the noble Lord the Chief Whip and others. But I will, of course, try to take it as briefly as I possibly can today—and I hope that the clock may be corrected so that it does not appear that I have been speaking for five minutes before I start!
§ This amendment is designed to ensure that the Countryside Commisssion, when looking at the provision of national parks, take a wider view than they appear to have done in the period since the 1949 Act was passed, although I do not think it would require them to take a wider view than was the intention of many of those who were involved in the initial work and indeed in the debates during the passing of the 1949 Act. I am delighted to see the noble Lord, Lord Sandford, here, because I wanted to start by quoting a recommendation from the noble Lord's report on national parks, where the noble Lord's committee recommended that, in considering possible new national parks, the commission should examine more diverse types of landscape, provided that they are of the highest quality, than the rugged uplands which dominate our existing parks, with the partial exception of the Pembrokeshire Coast Park. That is what the amendment would aim to ensure happens.
§ There are two parts to it; the first part is quite simply dealt with. The words, "extensive tracts", which appear in the 1949 Act would be removed and the word, "areas", substituted. It has been suggested to me that the words "extensive tracts" have been 539 taken to mean extensive tracts of open countryside, such as moorland or mountain. I do not believe that was the intention of those who framed the 1949 Act and, from looking at it, it seems to me that it certainly was not the intention of those who took part in the debates when the 1949 Act went through both Houses of Parliament. But it has been suggested that those words do place some restriction on the areas which can be covered by national parks. I do not think that is right, but, for the avoidance of doubt, I think it would be useful to remove those words and to substitute, "areas".
§ The second paragraph, paragraph (b), would ensure that, as Lord Sandford's committee recommended, the commission would look at more diverse types of landscape and, for example, would ensure that they looked at areas like the Norfolk Broads or the South Downs in determining whether there should be new national parks, and, if so, where. When the 1949 Act was being framed both the Norfolk Broads and the South Downs were serious candidates for inclusion for designation as national parks, as serious indeed as many of the areas that were designated. In looking at this Bill and the stage we have reached with it, it seems to me that we are offering very little that is new—indeed, absolutely nothing that is new except very minor matters by way of landscape and habitat conservation. This Bill when it becomes an Act is going to be in very sharp contrast to the 1949 Act in that respect. Nobody, I would suggest, is going to look back at the Wildlife and Countryside Act 1981 in the same way as we look at the National Parks and Access to the Countryside Act 1949, and see the many dramatically successful measures which flowed from that. The creation of national parks in this country has been a great post-war success in this field, and something which I am afraid this Bill is not going to follow in any way. It therefore seemed to me that it might be as well, if we were not going to do anything else, at least to build on our greatest post-war success and ensure that we could go on looking at national parks and their designation in a constructive and open-minded and positive way. Lord Sandford's committee seemed to me to point the way to ensure that we could do that.
§ My Lords, I hope that the Government will find that, although they have not been able to be very forthcoming about a number of other proposals put forward in this Bill, this one does have some attractions because of the success that the existing national parks have had. I beg to move.
§ The Earl of Avon
My Lords, under the relevant provisions of the 1949 Act, all national parks must at present be "extensive tracts of country" which meet two criteria; natural beauty and theopportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population".In practice, these requirements dictate that national parks should be predominantly located in upland regions (although the Pembrokeshire Coast Park is a notable exception). These are not farmed extensively and they therefore provide large areas in which there exists comparatively ready public access. By 540 deleting the statutory reference to "extensive tracts" and adding its proposed third criterion for designation, the amendment would set in motion, within 12 months of the commencement of the Act, a new programme of national park designation covering lowland farming areas and wetlands. Such an initiative could be unrealistic, partly because of the reserve costs of such a programme, but also more generally: national park designation is basically inappropriate in lowland areas, owing to the general incompatibility between their intensive farming operations and the opportunities afforded for open-air recreation. Even if the amendment were passed this last factor might in practice preclude most potential candidates for designation as new national parks: the lack of widespread access in most lowland areas would mean that the second criterion for national parks designation could not be met.
I have been listening to what the noble Lord has said with some interest because I think what he says makes a lot of sense. I think he probably knows that the Countryside Commission has been looking at areas of outstanding natural beauty and that the Government are going to read its review later on in the year, but that is a slightly different topic. What the noble Lord is doing is slightly broadening the scope of the Bill, and, although I can see that there would probably be very little land which would come under its scope, it does seem to me that we ought to consider it. We obviously have not heard the noble Lord's arguments before. I should like to have another look at the amendment if he will withdraw it at this stage.
§ Lord Sandford
My Lords, perhaps, before the noble Lord withdraws the amendment, I may make one observation on the matter, as the noble Lord, Lord Melchett, mentioned the work of our committee. My own feeling is that if the scope for designation is going to be extended in the future we have to move in the direction of the French regional parks, which are concerned not only with things like public access and conservation of natural beauty but with making a positive and beneficial contribution to the welfare of the people who live in the areas. The French regional parks now extend to about 20. Just to take a few examples, the one designated for the Carmargue is concerned with the regeneration of the rural economy of the area, which has collapsed since they ceased trying to grow rice in the delta. The one in Brière, which is on the edge of St. Nazaire, deals with the two social problems of preserving a traditional area of marshland, like the Broads, and at the same time coping with the pressure from the urban area, St. Nazaire, on the very fragile rural area. The French regional park in Normandy attempts to deal with the whole problem of the depopulation of the bocage. Unless there is some positive contribution for the benefit of the people who live in the areas concerned, I do not think it is going to be politically possible to make much headway.
§ Lord Melchett
My Lords, I very strongly agree with what the noble Lord, Lord Sandford, has said. We all hope that his amendment which your Lordships have passed will be a start in moving in that direction, which seems to me absolutely right. I suppose the 541 sorts of things the Countryside Commission have done in their management experiments in a minor way are also in the spirit of what the noble Lord mentioned—an attempt not to make a national park designation any sort of threat to landowners and farmers but a source of positive help in meeting the pressures and difficulties which inevitably follow from farming in an area which a lot of people like to visit for holidays or for other purposes. It really was with that in mind that I moved this amendment; we would be talking about areas like the Norfolk Broads, which, as I said previously, a quarter of a million people already visit every year for a holiday, where there are already considerable pressures, and where it seems to me that there would be enormous scope not only for the sort of activities that Lord Sandford mentioned but also for the sort of help which the National Parks Authority and the Countryside Commission are able to give in national parks to the people who live and work there.
There is one thing that the noble Earl said which I strongly disagreed with. I shall be careful how I put this, even though the noble Viscount, Lord Thurso, is not in his place. It does seem to me unfair of people who farm in the uplands to think that they should always be considered in some way to have an easier life than those of us who farm in the lowlands, to the extent that they are quite capable of managing millions of visitors every year on their farms whereas those of us who farm in the lowlands cannot. I simply do not see the logic of that. Moors and other areas of national parks are farmed. The noble Earl said, I think, that they were not intensively farmed, but it sounded as if he said "extensively", which I do not think he can have meant; I shall look at his remarks with interest tomorrow. In any event, they are farmed, and people visiting national parks are visiting areas which are farmed.
That is part of the joy of visiting a national park, apart from the uniqueness of the national park system we have in this country. These are areas where people live and work and where they make their living. They are in that respect not very different from lowland areas. There are many lowland areas with extensive rights of way and public access and where there are already enormous numbers of visitors. In that respect, I do not see them as very different from upland areas. There are other lowland areas where, it seems to me, there is still considerable scope for absorbing more visitors, and more visitors there might mean less pressure in the uplands, where I dare say some farmers at some times feel there is more visiting than farming going on. That was part of the drive of this amendment, not necessarily simply to take pressure off the uplands but to help in that respect by allowing the commission to consider creating more parks in the lowland areas, which would incidentally be much closer to the main centres of population than existing national parks.
The noble Earl kindly said he would consider what I have said. I hope he will take into account what has been said since he sat down by the noble Lord, Lord Sandford, and by me. I look forward to hearing some response from him, and no doubt if we cannot amend this in your Lordships' House it would be a matter that could be taken up in another place. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.542
§ 4.40 p.m.
§ Lord Melchett moved Amendment No. 173GA:
§ After Clause 37, insert the following new clause:
§ ("Amendments of Agriculture (Miscellaneous Provisions) Act 1944
§ . Section 1(1) of the Agriculture (Miscellaneous Provisions) Act 1944 shall be amended by the insertion of the words "such advice to take into account nature conservation, wildlife and landscape interests," after the words "agricultural matters".".
§ The noble Lord said: My Lords, I beg to move Amendment No. 173GA. I apologise for the fact that four of my amendments have come in a row. However, we now return to a more serious matter in the sense that I hope that the Government will now be prepared to accept this amendment. We discussed this amendment in Committee. It concerns the Strutt Report and the role that ADAS—the advisers to farmers on farming matters—might play in giving advice about nature conservation and wildlife. However, the only change in the amendment since we discussed it in Committee is one deletion to meet a drafting error which the noble Earl kindly pointed out to me when I moved the amendment at that stage.
§ This matter has a long history which we went into in Committee and I shall not repeat it now save to say that there has been, I think it is fair to say, unanimous support from both farmers and all those concerned in the agricultural industry, and nature conservationists, that it would be sensible for ADAS officers, when they are going about their jobs and giving advice to farmers on nature conservation matters, also to be in a position when giving that advice to take into account the interests of nature conservation and wildlife.
§ That was recommended by the Strutt Committee which was an agricultural committee, not a conservation committee, and one appointed by the Ministry of Agriculture. It was accepted in principle by the last Government and accepted in principle by this Government. It was not implemented, quite wrongly in my view, by the last Government because of shortage of resources and we now have the position that this Government are in at the moment which is, as I understand it, that when they introduced changes to the farm capital grants scheme last year they explicitly said that the changes they were introducing, the savings in manpower and administrative costs that they had introduced by abolishing prior approval, would enable them to ensure that ADAS spent more time giving advice on wildlife and nature conservation matters. That comes very close, I suppose, to accepting in full the Strutt recommendation.
§ The purpose of putting this amendment into the Bill is simply to ensure that the Government have actually accepted in full the Strutt recommendation. The implications of course will be that wildlife and nature conservation matters will have to be taken into account in training those who work for ADAS, and all ADAS officers would be told that when they gave advice they should, wherever possible and where it was practicable, sensible and seemed to be desirable, give advice which took into account nature conservation and wildlife interests.
§ As I understand it, the Government have not gone that far and, in fact, the noble Earl wrote me a letter after our debate in Committee which seemed to me slightly to avoid the issue by praying in aid Section 11 543 of the Countryside Act, which has been on the statute book all the way through this process—the period when Strutt reported, throughout the last Government; and then this Government have failed to implement what everybody else thought was a sensible idea. Section 11 of the Countryside Act has been in existence all the time and it did not lead to Strutt being implemented.
§ Section 11 of the Countryside Act requires Ministers and public bodies to have regard to the needs of conservation. As I understand it, the Government's argument is that it already allows them to implement the Strutt Report. I do not think that they go as far as saying that Section 11 requires them to implement the Strutt Report, because if it did so obviously the last Government would have so implemented it. Therefore, it seems to me, if I may say so to the noble Earl, that Section 11 is a total red herring, that it really does not bear on this amendment and that it should not be used as a way of avoiding the point that this amendment is directed to, which is to require the Strutt recommendation to be implemented.
§ This amendment ensures that when ADAS gives advice it will take into account the nature conservation, wildlife and landscape interests. It is a simple point and one which I think, as far as I can gather from the mists of the Government's responses both in Committee and in letter, that the Government have substantially accepted. It is one that has always had complete support from both sides of your Lordships' House and, as I have said, from both agricultural and conservation interests. I very much hope that, having had a chance to think about it, the Government will now accept the amendment. I beg to move.
§ The Earl of Avon
My Lords, of course we recognise the intention of this amendment and, in our discussions at the Committee stage, I promised to look further into the question of its desirability and did so. Moreover, as the noble Lord has said, I also put my thoughts into writing. As the noble Lord has explained, his purpose, by this amendment, is to implement the recommendation of the Strutt Committee that the role of ADAS should be extended to include conservation advice to farmers. Our case continues to rest, with respect, with the view that this does not require fresh legislation. As I explained when we debated this earlier, Section 11 of the Countryside Act 1968 already requires that all Ministers, Government departments and public bodies—including ADAS— should have regard to the needs of conservation in pursuing their functions related to land. In fact, implementation of this aspect of the Strutt Report is dependent not on statutory changes, but on the availability of resources to enable ADAS to extend its existing knowledge of environmental matters and develop its capacity to provide guidance to farmers on conservation.
As my noble friend Lord Mansfield reported to the House last year, some of the savings achieved in the recent streamlining of the administration of MAFF capital grants will be used and are being used to help enhance this side of ADAS's work. Furthermore, there will he shortly issued to ADAS staff a booklet 544 on habitat and species conservation which has benefited from advice from the NCC and the Countryside Commission. I understand that the booklet will be called Conservation Guidelines—a Guide to Wildlife Habitats on Farms. I, therefore, submit to the House that this amendment is unnecessary as a statutory provision not only exists, but is being applied. I hope that with those few remarks the noble Lord, Lord Melchett, may feel able not to press his amendment.
§ Lord Melchett
My Lords, first I should like to correct the noble Earl on a matter. The amendment does not require ADAS to give advice on nature conservation and wildlife. I think that it would be presumptuous of anybody to make such a suggestion and I do not think that that was the suggestion made by the Strutt Report. The amendment says that when ADAS is giving advice to farmers on agricultural matters, such advice should take into account nature conservation, wildlife and landscape interests. In other words, all that the amendment does is to say to ADAS officers, "When you are giving advice to farmers, as you do so effectively and efficiently and in a way that is so widely welcomed by everyone in agriculture, take into account wildlife and nature conservation". It seems to me that that is a recipe for trying to avoid some of the conflicts which will otherwise arise in the countryside between farmers and nature conservationists. When a farmer rings ADAS for advice on anything from clearing a dyke, to a drainage proposal, to spraying or whatever, the advice that he gets will take into account the interests of nature conservation. That is not the same as giving advice on nature conservation and I hope that the noble Earl and his advisers will take that point on board, because it is an important one.
The noble Earl then went on to say that implementing this does not require fresh legislation. I can certainly accept that that is the case. But there is a different point which I am trying to make and that is to require the Government to do this does need fresh legislation. Perhaps I may make the point again to ensure that it is clear to the noble Earl. I know that he can do what Strutt wanted him to do under existing legislation, but the problem has been that both the last Government and this Government have not done it. Both have shilly-shallied, avoided and dodged the issue. That has been done by both the last Labour Government and the current Government. I am suggesting that we should pass an amendment which requires the Government to do this. They may not need legislation to enable them to do it, but they clearly need legislation to require them to do it and that is what this amendment would do.
We have had a number of debates—including at least one today—on issues upon which noble Lords on all sides of the House strongly disagree. This is not an amendment of that sort. As I have said, it has been one that has always united nature conservationists and farming interests against, first, the last Labour Government and now the present Government, for want of implementing it. I think that this Bill provides us with an opportunity at least for getting into law the matters on which we all agree, and it would be a great pity if we missed that opportunity. I hope that the House will accept the amendment. I beg to move.
§ On Question, amendment agreed to.545
§ 4.50 p.m.
Lord Melchett moved Amendment No. 173GB:
After Clause 37, insert the following new clause:
- (a) in section 1(a)(iii), after "nature conservation" insert "and all wildlife";
- (b) after sub-paragraph (iii) of section 1(1)(a) insert the following sub-paragraph—
- "(iii)(a) the promotion of the enjoyment by the public of all wildlife; and";
- (c) in sub-paragraph (iv) of section 1(1)(a) for the words "sub-paragraphs (i) to (iii) above" substitute the words "sub-paragraphs (i) to (iii)(a) above";
- (d) at the end of subsection (2) of section 1 insert—
§ The noble Lord said: My Lords, if I have the attention of noble Lords opposite, this amendment is, again, one that we discussed in Committee, where I moved a much more substantial amendment to the Nature Conservancy Council Act. I listened very carefully to everything that was said in that debate and it seemed to me that there was a fair amount of agreement about the point at which these amendments strike.
§ My previous amendment concerned the question of those appointed to the Nature Conservancy Council and the question of enforcement by the Nature Conservancy Council of wildlife legislation. I have dropped both those matters from the amendment. I simply want to see whether we cannot ensure that the Nature Conservancy Council takes an interest not only in the strictly scientific aspects of nature conservation but in the wider, more popular aspects of nature conservation and wildlife, which, after all, are the matters in which most people in this country are interested. I know that the scientific aspects of nature conservation are of great interest to the experts, but most people are interested in wildlife in general, not necessarily in the rarer species, which are either very difficult or impossible to see and are not the kind of things on which your Lordships' House has spent some time in dealing with various parts of the Bill, such as the bar-tailed godwit or even bats—dare I say that in the presence of the noble Lord, Lord Craigton? The public are more interested in the more everyday birds and the more everyday and highly visible mammals—at least the few that are visible.
§ It seems to me that if we are legislating for many years in the future—which we are in this Bill—it is important that the Nature Conservancy Council should be in a position within its statutory powers to respond to this popular view of nature conservation, to cater for it and, above all, to encourage it. That is what the amendment would do.
§ I dropped the words "natural history", which I think the noble Earl in his previous reply—in at least as much of it as I understood—convinced me were not suitable for inclusion in the amendment. However, I hope that simply to include "wildlife" (which after all is the title of this Bill) is uncontroversial and will be acceptable to both the Nature Conservancy Council, which I am sure will respond by saying that they already do this—in which case I see no harm in having it made clear in the statute—and the Government; for it seems to me to reflect the views on this Bill and the views of noble Lords on all sides of the House. I beg to move.546
§ The Earl of Avon
My Lords, I have noted with great care the terms in which the noble Lord, Lord Melchett, has couched this revision of his earlier amendment in Committee. However, I am afraid that the Government still consider this amendment to be at best unnecessary and at worst an embarrassment, particularly in relation to the duty to promote public enjoyment of all wildlife.
I shall try to explain this. So far as the Government and the NCC are concerned, nature conservation embraces all wildlife and includes both flora and fauna. Furthermore, we are unaware of any suggestion that there is any lesser definition. As regards placing a duty on the NCC to promote the enjoyment by the public of all wildlife, I can only say that there are occasions on which such a requirement would be in direct conflict with the needs of nature conservation, which must come first. Furthermore, the Government and the NCC are quite satisfied that their present terms of reference enable them to promote the enjoyment of the public of wildlife where this is appropriate and to the extent that their resources allow. I hope the noble Lord will accept that the principle of his amendment is well understood and applied, and that his amendment is not only unnecessary but could prove an embarrassment.
§ Lord Melchett
My Lords, occasions when Government Ministers get up and say that amendments are both unnecessary and then do something always seem to me to herald replies of the greatest weakness and greatest suspicion. How can something be both unnecessary (because the argument is that it is already in legislation) and then have all sorts of catastrophic results for the poor Nature Conservancy Council, including causing them great embarrassment? More seriously, I think that it is helpful to have what the noble Earl has said about the definition of nature conservation on the record, for I do not think that that has been universally accepted among those involved throughout the nature conservancies and the history of the Nature Conservancy Council. So I shall look at what the noble Earl said with great care.
During the passage of this Bill the Nature Conservancy Council have caused the Government so much embarrassment by the actual statistics they have produced that I certainly do not want to cause any embarrassment to the council. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 38 [Provisions with respect to the Countryside Commission]:
§ The Deputy Speaker (Lord Maybray-King)
. My Lords, I am advised that if Amendment No. 173H is agreed to I cannot put Amendment No. 173J to the House.
Lord Craigton moved Amendment No. 173H:
Page 33, line 13, leave out subsection (4).
§ The noble Lord said: My Lords, with the agreement of the House, with this amendment I should like to discuss Amendment No. 173Q. The Government have already accepted an earlier amendment putting power 547 to create marine reserves into the Bill. The words referred to are now unnecessary. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 173J not moved.]
Lord Melchett moved Amendment No. 173K:
After Clause 38, insert the following new clause:
After subsection (3) of section 3 the following subsection shall be inserted—
( ) Members appointed by the Secretary of State shall be persons who appear to him to be familiar with the need to conserve the natural beauty and wildlife of the authority's area.".").
The noble Lord said: My Lords, in a very helpful letter which the noble Earl wrote to me on 3rd March about a similar amendment that I moved in Committee, he said among other things that on Report he would explain the point that he made in the letter further,
when I hope to provide an effective, non-statutory commitment to meet the spirit of the amendment".
I have tabled the amendment again to give the noble Earl the opportunity of doing that. I beg to move.
§ The Earl of Avon
My Lords, when a similar amendment was discussed in Committee we undertook to consider whether it would be useful to have one or two people with expertise on nature conservation on each of the water authorities. The Government fully recognise the importance and relevance of wildlife and landscape conservation to the work of water authorities, and it is our aim to achieve a reasonable balance of interests in the membership of each authority. To some extent, however, the overall size of the water authorities' membership, which varies considerably between authorities, imposes a constraint. For example, although the Secretary of State appoints 17 members to the Thames Water Authority, which is the largest, to the smaller ones, for instance the South-West and Wessex, he appoints only four. This illustrates how difficult it would be to meet a requirement that a particular interest will always be represented on every water authority, whether it be the conservation of natural beauty and wildlife or some other, like the needs of industry, commerce or recreation. That is why we do not think it would be right to introduce a statutory commitment.
I can, however, assure noble Lords that we are prepared to use our best endeavours to ensure that the larger water authorities have at least one member with experience of wildlife and conservation, and I hope that this will indicate that we will act in the spirit of the amendment as far as we reasonably can.
§ Lord Melchett
My Lords, I am grateful to the noble Earl for that information. I think that one might be rather niggardly on some of the larger water authorities. I hope that the Government will bear in mind the enormous concern that the activities of some water authorities have generated in the past and, more importantly perhaps, the extent to which a number of water authorities are now getting together with nature conservation interests, agreeing procedures for prior 548 consultation, agreeing to have regular meetings with nature conservation interests in the areas covered by the water authority; and the great help that it would be to water authorities in those procedures were they to have one or two members who had some personal knowledge of nature conservation, and the other interests—the amenity of the countryside and recreation in the countryside interests—with which water authorities must be conversant and deal. I am grateful to the noble Earl for the assurance he has given. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 11 [Provisions with respect to the Countryside Commission]:
§ [Amendment No. 173 KA not moved].
§ Baroness David moved Amendment No. 173KB:
§ Page 77, line 34, leave out from ("include") to the end of line 39 and insert—
- ("(a) a statement of the action taken by the Commission to promote the enjoyment of the countryside by members of the public who are disabled; and
- (b) a record of all questions with which the Commission have been concerned during that year and which appear to the Commission to be of general public interest, indicating the purport of any representations or recommendations made by the Commission with respect thereto, and the conclusions (if any) reached thereon.").
§ The noble Baroness said: My Lords, I spoke to this amendment last week when I moved Amendment No. 173YA. I think that the principle was accepted. I beg to move.
§ On Question, amendment agreed to.
§ Clause 39 [Powers of entry]:
§ [Amendments Nos. 1731, and 173M not moved.]
§ 5.1 p.m.
Lord Melchett moved Amendment No. 173N:
After Clause 39, insert the following new clause:
§ ("Report by Secretary of State
§ . The Secretaries of State shall submit to Parliament each year a report on the way decisions or actions by Ministers and public bodies have been modified by the duties imposed by section 11 of the Countryside Act 1968 and section 26 of the Countryside (Scotland) Act 1967 to have regard to the desirability of conserving the natural beauty, amenity, wild flora, fauna, geological and physiographic features of the countryside.").
§ The noble Lord said: My Lords, this is another amendment that we discussed at Committee stage. It involves Section 11 of the Countryside Act which we were discussing a few amendments ago. Once again the noble Earl kindly wrote me a full letter, in this case about the Government's thinking on this. He suggested a number of reasons why he did not think it would be desirable for a report to be made to Parliament about the implementation of Section 11. Section 11 places a duty on Ministers and public bodies to take into account the interests of nature conservation and landscape interest in the exercise of their functions.
§ It is one of those enormously well-meant but incredibly general duties which are placed on Ministers and public bodies from which I am afraid it is difficult to see any positive result. I have no doubt that Ministers 549 and public bodies are constantly aware of the duties imposed on them by Section 11—have it forever in front of them, and take it fully into account in all the decisions they make. Although if that were actually the case, I must say I would personally be somewhat surprised. Nevertheless, even if that is the case that is not the impression that the general public have of the efficacy of Section 11. On the contrary, it is widely regarded as being of no practical use whatsoever.
§ It is unfortunate if one of the major planks of the statutory powers which nature conservationists and those interested in the landscape of the country have is simply considered to be of no value because nobody takes any notice of it. It does not do much for the law of this country, and certainly it does not say much for the attention that Ministers and officials of public bodies pay to Acts of Parliament. There was a committee set up by the last Government composed entirely of senior civil servants and representatives of the statutory agencies like the Countryside Commission and the Nature Conservancy Council which looked at a wide range of issues in the countryside, and with most of whose conclusions this Government, and I think most other people who looked at it, disagreed. But just because a number of their conclusions were not accepted and the committee was subsequently disbanded by the Government, it would be unfair to those concerned to say that everything they suggested was of little value, and that there were not some recommendations which could be implemented.
§ One of the recommendations they made was that there should be some annual reporting to Parliament on the implementation of Section 11. Whatever other arguments may be brought forward against this amendment, it clearly cannot be that any particular department has overwhelming objections to it because the officials representing all the departments that might be interested sat on this committee and they all agreed that this was a practical, realistic, and indeed sensible proposition to put forward in a public document for the public and Ministers to consider. Therefore, I hope there are no practical objections to it.
§ I changed the amendment slightly to meet one of the arguments against it which the noble Earl put in his letter, which was that Section 11 was aimed at Ministers and public bodies, and logically therefore the requirement would have to extend to all Ministers, and indeed nationalised industries whose activities were likely to impinge on the countryside. I have now asked that Secretaries of State—that would be the Secretaries of State for the Environment, and for Wales and Scotland—report on the way that actions and decisions by Ministers and public bodies in general have been modified by Section 11.
§ The noble Earl suggested that if this were introduced for Section 11 a similar requirement would be needed in respect of Section 37, which calls on every Minister to have due regard to the needs of agriculture and forestry, and the economic and social interests of rural areas. All I can say to that is, "Hear, hear"! I hope it does. It would be an excellent thing for somebody who lives in a rural area and farms. I do not think anybody pays nearly enough attention to the problems of rural areas, including the present Chancellor of the Exchequer. It would be a good thing if Ministers and public bodies had to tell us what 550 account they had taken of the social and economic needs of agriculture and rural areas in general. If that were the case, maybe we would not have had some of the proposals that we have had from this Government which would have affected rural Post Offices, and in the Budget which would severely affect everybody living in rural areas, and particularly the agricultural industry. I am all for Ministers having to pay a lot more attention to both Section 37 and Section 11. If this amendment were passed and they had to do both, it would be an excellent thing. I see that as a strong argument in favour of the amendment.
§ The next argument seems to be that reports to Parliament are not of great use. That is an argument that Ministers and officials use, but it is not an argument which should be acceptable to Parliament. Reports to Parliament are of enormous value to Parliament. They may be a difficulty and an embarrassment to Ministers, and it may be a chore for civil servants to have to write the reports, and it may even be a bit difficult for everyone to continue to ignore Section 11, or indeed Section 37 of the Countryside Act to the extent which I have a feeling they do at the moment, if they know they are going to have to report to Parliament on steps they have taken to modify their actions in the light of those sections.
§ Reports to Parliament give all of us, parliamentarians and indeed all the general public, the opportunity to see what Ministers have actually been doing. It gives us an opportunity to ask intelligent questions about the actions they have taken, and to complain about them. It does not seem to me that it should be for Ministers to decide whether these reports are useful. It should be for Parliament and the public to decide, because it is in the wider public interest that such reports are produced not for the comfort and benefit of Government Ministers. Although, of course, if they have taken some worthwhile actions, such a report gives them an excellent opportunity to blow their own trumpet, which I am sure no Minister would ever want to turn down.
§ The final argument I can see being given against this amendment is that it would be an onerous burden because in endless ways, endless decisions are going to be significantly modified by Section 11 of the Countryside Act. I do not believe for a moment that that is true. In any event, I would expect that such an annual report would cover major decisions that have been modified by Section 11. It would not cover the generality of small, routine decisions and it would be quite clear to Ministers what things they should put in the report and what things really were not worth troubling Parliament with. That would be the case on any report that anybody wrote about their actions under a particular Act of Parliament. I hope I have managed to demolish the noble Earl's brief in response to this amendment and that it will be acceptable to your Lordships. I beg to move.
§ Lord Donaldson of Kingsbridge
I support the amendment, my Lords. It is always thought impossible to make a report about anything which has not been required traditionally. On the other hand, extraordinary changes are going on as the result of legislation and for the Secretaries of State concerned to report to Parliament once a year on what is happening would 551 be an invaluable effort for them; it would make them much more aware of what their departments were doing, it would be very useful to Parliament, as my noble friend said, and I therefore hope we will not get one of those blank negatives which we expect from the Minister.
§ The Earl of Avon
My Lords, the danger of writing to the noble Lord, Lord Melchett, with one's argument is that one gets the argument thrown back along with the answers as well. I recognise that the amendment is a sincere attempt to overcome the objection which I explained in Committee. The proposed annual report to Parliament by the Secretaries of State would cover not just their own activities but those of other Ministers and all public bodies. While the earlier amendment had less point, because the Secretaries of State are themselves accountable to Parliament, this one would impose a burden on the Department of the Environment, the Welsh Office and the Scottish Office. It would be necessary for them to monitor the activities of all public bodies throughout the course of the year in order to provide an annual report on what has or has not happened because of the provisions of Section 11 of the Countryside Act 1968 and Section 66 of the Countryside (Scotland) Act 1967.
I acknowledge that the Countryside Review Committee considered there might be merit in introducing arguments to ensure accountability under Section 11 of the Countryside Act 1968. This was a theme raised first in their initial paper The Countryside—Problems and Policies, published in 1976, which the committee returned to in their final Discussion paper No. 4, Conservation and the Countryside—Problems and Policies. The latter was published in 1979 and mooted the possibility of an annual report to Parliament by the Secretary of State. But the committee recognised that that was not the only way, and I must emphasise that the Countryside Review Committee was an unusual body. Although composed of public servants, they served in a personal capacity and the committee's papers were published on an exploratory basis. Publication did not commit individual members of the committee or their parent bodies and, in particular, they did not commit Ministers. That was made clear in a preface to each of the discussion papers.
The duty laid on Ministers and public bodies by Section 11 of the Countryside Act 1968 and Section 66 of the Countryside (Scotland) Act 1967 is a most important one, and both I and my colleagues stand by our determination that it must never be overlooked. But it is the Government's view that formalisation of this aspect of decision-making by means of an annual report to Parliament is undesirable. It might help if I were to read out what the section says:In the exercise of their functions relating to land under any enactment, every Minister, Government Department and public body shall have regard to the desirability of conserving the natural beauty and amenity of the countryside".The Government believe that is a full and forthright statement on which to rest their case.
§ Lord Melchett
It is a full and forthright statement, my Lords, but the question is whether anybody takes any notice of it. The only way Parliament and the public can know whether anybody takes any notice of 552 it is if Ministers will tell us what they are doing about it, and the noble Earl will not; all he will tell us is what they are meant to do about it and what is already in legislation. I accept from him that the Government have a commitment to ensure that Section 11 will never be overlooked, in his words, and I assume that, to ensure that is the case, civil servants and Ministers at the Department of the Environment, the Welsh Office and the Scottish Office monitor what is being done by other departments and public bodies with great care to ensure that Section 11 is not overlooked. That is what we want reported to Parliament—the outcome of that monitoring.
The noble Earl spoke as if the amendment would require that monitoring process to take place. If the noble Earl's department and the departments of his colleagues are doing their job properly, they must be doing that monitoring now. As we know, the committees within government, of both Ministers and officials, which determine everything that happens within government, will be taking this into account because the Department of the Environment and the Scottish and Welsh Offices will be represented on those committees. Section 11 will be thrown into the melting, pot of discussion on a wide range of issues whenever those departments feel it should be. What we want is an annual report saying when that happened and what action resulted from it.
Of course, if the departments of the noble Earl and his colleagues were not monitoring the provision properly, then the suspicions of everybody outside about the worthlessness of Section 11 would be justified, but I would not for a moment charge the noble Earl and his department or other Government departments with that degree of incompetence or laxity. Nevertheless, I believe it fair that Parliament should require a report so we can actually see they are doing their job rather than simply have the noble Earl's assurance for it, valuable though that is.
This is not a particularly controversial point. It is a point on which there has been a good deal of agreement on all sides and, as I pointed out, agreement by representatives of all Government departments which might be interested. I appreciate that civil servants do not commit Ministers or their departments. Nevertheless, I have not yet come across a committee composed of civil servants which did not reach a recommendation which would not in practice be able to be accepted by Ministers or their departments, and am sure that of all the recommendations they may make, this must be the least controversial, so I hope the House will accept the amendment.
§ 5.17 p.m.
§ On Question, whether the said amendment (No. 173N) shall be agreed to?
§ Their Lordships divided: Contents, 83; Not-Contents, 97.554
|Airedale, L.||Banks, L.|
|Amherst, E.||Beswick, L.|
|Ampthill, L.||Birk, B.|
|Ardwick, L.||Boothby, L.|
|Avebury, L.||Boston of Faversham, L.|
|Bacon, B.||Briginshaw, L.|
|Balogh, L.||Brockway, L.|
|Bruce of Donington, L.||Loudoun, C.|
|Chorley, L.||Lovell-Davis, L.|
|Collison, L.||Melchett, L.|
|Cooper of Stockton Heath, L.||Mersey, V.|
|Craigavon, V.||Noel-Baker, L.|
|Crowther-Hunt, L.||Northfield, L.|
|David, B. [Teller.]||Oram, L.|
|Denington, B.||Peart, L.|
|Donaldson of Kingsbridge, L.||Phillips, B.|
|Elwyn-Jones, L.||Ponsonby of Shulbrede, L.|
|Fletcher, L.||Rathcreedan, L.|
|Foot, L.||Ross of Marnock, L.|
|Gaitskell, B.||St. Davids, V.|
|Gladwyn, L.||Segal, L.|
|Goronwy-Roberts, L.||Somers, L.|
|Gosford, E.||Stamp, L.|
|Greenwood of Rossendale, L.||Stedman, B.|
|Gregson, L.||Stewart of Alvechurch, B.|
|Hale, L.||Stewart of Fulham, L.|
|Halsbury, E.||Stone, L.|
|Hampton, L.||Strabolgi, L.|
|Hanworth, V.||Strauss, L.|
|Houghton of Sowerby, L.||Taylor of Gryfe, L.|
|Howie of Troon, L.||Taylor of Mansfield, L.|
|Hunt, L.||Thurso, V.|
|Hylton-Foster, B.||Underhill, L.|
|Ilchester, E.||Wallace of Coslany, L. [Teller.]|
|Jeger, B.||Wells-Pestell, L.|
|Kilmarnock, L.||Whaddon, L.|
|Kinloss, Ly.||White, B.|
|Leatherland, L.||Wigoder, L.|
|Listowel, E.||Winterbottom, L.|
|Llewelyn-Davies of Hastoe, B.||Wootton of Abinger, B.|
|Longford, E.||Wynne-Jones, L.|
|Airey of Abingdon, B.||Home of the Hirsel, L.|
|Alexander of Tunis, E.||Inglewood, L.|
|Allerton, L.||Kemsley, V.|
|Alport, L.||Killearn, L.|
|Auckland, L.||Lauderdale, E.|
|Avon, E.||Long, V.|
|Balfour of Inchrye, L.||Lonsdale, E.|
|Bellwin, L.||Lyell, L.|
|Belstead, L.||Mackay of Clashfern, L.|
|Bessborough, E.||Macleod of Borve, B.|
|Burton, L.||Mancroft, L.|
|Buxton of Alsa, L.||Mansfield, E.|
|Caithness, E.||Margadale, L.|
|Campbell of Croy, L.||Massereene and Ferrard, V.|
|Cockfield, L.||Middleton, L.|
|Cottesloe, L.||Monk Bretton, L.|
|Cullen of Ashbourne, L.||Morris, L.|
|Daventry, V.||Mottistone, L.|
|de Clifford, L.||Moyne, L.|
|De Freyne, L.||Murton of Lindisfarne, L.|
|Denham, L. [Teller.]||Newall, L.|
|Drumalbyn, L.||Norfolk, D.|
|Eccles, V.||Northchurch, B.|
|Ellenborough, L.||Nugent of Guildford, L.|
|Elliot of Harwood, B.||Onslow, E.|
|Elton, L.||Peel, E.|
|Exeter, M.||Portland, D.|
|Faithfull, B.||Reigate, L.|
|Ferrers, E.||Renton, L.|
|Feversham, L.||Ridley, V.|
|Fraser of Kilmorack, L.||Romney, E.|
|Gainford, L.||St. Just, L.|
|Glasgow, E.||Saint Oswald, L.|
|Gormanston, V.||Sandys, L. [Teller.]|
|Gowrie, E.||Savile, L.|
|Gridley, L.||Selborne, E.|
|Grimthorpe, L.||Shannon, E.|
|Hailsham of Saint Marylebone, L.||Skelmersdale, L.|
|Hawke, L.||Stanley of Alderley, L.|
|Hemphill, L.||Strathcarron, L.|
|Henley, L.||Strathclyde, L.|
|Strathspey, L.||Vaux of Harrowden, L.|
|Swinfen, L.||Vickers, B.|
|Swinton, E.||Vivian, L.|
|Terrington, L.||Waldegrave, E.|
|Teviot, L.||Westbury, L.|
|Tranmire, L.||Wise, L.|
|Trumpington, B.||Yarborough, E.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 40 [Interpretation of Part II]:
§ [Amendment No. 173P not moved.]
§ 5.26 p.m.
§ Lord Craigton had given notice of his intention to move Amendment No. 173Q:
§ Page 34, leave out lines 17 and 18.
§ Baroness David
My Lords, the noble Lord, Lord Craigton, has asked me to act in his absence. He spoke to this amendment with Amendment No. 163H. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 173R and 173S not moved.]
§ Lord Melchett moved Amendment No. 173SZA:
§ Leave out Clause 40.
§ The noble Lord said: My Lords, this amendment brings us right to the very end of Part II of the Bill. I do not intend to press the leaving out of Clause 40, but I wish to raise with the noble Earl—I have given him notice of this—the question of the term "sites of special scientific interest". Your Lordships will remember that we had a brief discussion about this point at the Committee stage, and I think that all of us agreed that the term "sites of special scientific interest" is a terrible mouthful at the best of times, and "SSSIs" is even worse, especially if one is trying to go quickly, late at night, after dinner. At Committee stage, when I moved an amendment to this effect, it seemed desirable that the term should be changed.
I have had long discussion with those authorities in your Lordships' House who are experts in these matters about how I could change the term. Although the term "sites of special scientific interest" has been very widely used in our debates, it appears nowhere in the text of this Bill, nor any Act of Parliament. It appears in a sidenote to the 1949 Act, I think, and in amendments to this Bill. One cannot by way of amendment amend a sidenote. On page 24 of the Bill, the sidenote in the left-hand margin, alongside Clause 27 states:
Orders designating certain areas of special scientific interest".
Your Lordships will notice that that sidenote refers to "areas", whereas they are actually called "sites". I am told that this is simply a decision of the draftsman, or possibly not even that, but rather a case of the Government telling the draftsman what to call clauses.
§ So my message to the noble Earl is, first, get rid of this terrible acronym, and mouthful, simply by issuing an instruction to the effect that another term should be used. Thus, when the Bill is being reprinted, without an amendment having been made in your Lordships' House, without in fact any noble Lord being able to move an amendment, even if he so desired—and I certainly 555 did—the term can be changed, as if by a miracle. The noble Earl holds this enormous power in the palm of his hand, and I very much hope that now that he is aware of that power he will use it. Even if the Government cannot finally decide what they would like to call the sites, they can at least decide that they should be called not "areas of special scientific interest", but something else. In deference to my noble friend Lady White, who raised this problem at the Committee stage, I should like to suggest that they be called "wildlife conservations areas" or "geological conservation areas". I realise that that would involve having two terms, but the sites are quite widely known as the "biological SSSIs" and the "geological SSSIs". We would greatly simplify matters if we could get rid of that distinction by calling the two sets of areas different things.
§ In our debates in your Lordships' House on Part II of the Bill we have in fact talked about biological SSSIs, the rate of destruction of biological SSSIs and so on. So it seems to me that it would be a valuable simplication to have two alternative names depending on whether the site or the area has been designated for its wildlife interest or for its geological interest; and I hope that, without the noble Earl needing to do anything more, when the Bill is reprinted we shall see in the margin on page 24, "Orders designating certain wildlife conservation areas or geological conservation areas". If they cannot accept this now, I hope that the Government will work away behind the scenes to make sure that this important change is made before the Bill is reprinted after our deliberations today. I beg to move.
§ The Earl of Avon
My Lords, of course we go along with the noble Lord, Lord Melchett, about the incompatibility of the words "special scientific interest" late at night and a term which produces no beauty at all when one wants to try to get a term which conjures up what it really means. I would go along with what the noble Lord has said. I should like to suggest myself that perhaps one might have them called "habitat protection sites" and "geological protection sites", as yet another alternative. I have also had put before me "areas of wildlife importance" and "areas of geological importance". We shall look at all these and see which we think is best. One slight trouble about the phrase "a wildlife conservation area" is that it becomes "a WC area", and I am not quite sure whether or not people will pick that up. Having said that, I am sure that noble Lords will realise that the Government are giving it thought and are moving along the same lines as the noble Lord opposite.
§ Lord Melchett
My Lords, I am grateful to the noble Earl. I had hoped that it would be called a WCA, not a WC, because that is what it would be—a wildlife conservation area. There is one other point I should have made in introducing these remarks and did not, but of which I think the noble Earl is aware, and that is that the rubric to Clause 27 does not refer to the areas which are covered by orders under Clause 27. If one reads it, it says, "Orders designating certain"—that is, orders designating some—of the sites of special scientific interest. So the terminology applies to all 556 these sites although Clause 27, of course, will apply only to very few. So the terminology used in the rubric to Clause 27 is the terminology which will apply to the total number of what are currently sites of special scientific interest. In those circumstances, I am not sure that protection is right, because as we all know, I hope, at the end of our debates on Part II the one thing that the sites of special scientific interest are not is protected against anything. A few of them may have some protection for 12 months as a result of Clause 27, but none of the rest is protected.
It may be that a misleading title will be helpful to the nature conservation cause, but I think I would prefer to have them not misleadingly titled; and I dare say that that would be a view which farmers and landowners might share, though I do not know. But I am grateful to the noble Earl for considering this. I hope we might get something else in before the Bill is reprinted, before it leaves your Lordships' House, in any event, so if we do not do it by whenever the Bill is reprinted some time this week it can at least be done after Third Reading; and I hope the Government now have enough solid suggestions to enable them to come to some conclusion. I look forward to seeing what it will be. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 41 [Duty to keep definitive map and statement under continuous review]:
§ 5.35 p.m.
§ Lord Melchett moved Amendment No. 173SA:
§ Page 34, line 37, after second ("to") insert ("subsection (1A) of this section and").
§ The noble Lord said: My Lords, this is an amendment which we discussed at Committee stage; and, as noble Lords will see in the case of both this amendment and of a number of others to which my name is put down, there has been an attempt, in order to reduce the amount of time we spend on Part III of the Bill and to ensure that we finish at a reasonable hour tonight, to consolidate various of the amendments which were discussed at Committee stage and to reduce the number brought back at Report. To that end my noble friend Lord Fletcher, the noble Lord, Lord Avebury, and the noble Viscount, Lord Hanworth, have combined on a number of amendments, and in one or two cases there has been a slightly different combination; but that is the purpose behind this. There was some discussion and an attempt to reduce the number of amendments brought back at Report stage.
§ This was an amendment which the noble Lady, Lady Kinloss, moved at the Committee stage, and the two amendments—I should like to speak to the following amendment, No. 173SB, as well—aim to deal with an important matter, but a matter of drafting. Clause 41(1) and Clause 49(1) define the words, "definitive map" and "statement" as being either, first, the current definitive or revised definitive map and statement or, second, where there is no definitive map and statement, the map and statement prepared under Clause 43(2).
§ The worry of those of us who have our names to this 557 amendment is that the definition means that orders made under Part III to modify the map and statement will not legally form part of the map and statement unless and until a new map is prepared; and that will be prepared under Clause 45(2). So there would be a definitive map and statement and then a number of orders made to change it, to modify it, but they, it appears, will not be legally part of the map under the definitions in the Bill. Clause 45(2), which is the clause under which the new one will finally be prepared—and I sympathise with the noble Lord, Lord Stanley, if he is finding this difficult to follow, because I certainly am—makes reference to the map and statement as modified by orders. In other words, when the new one is finally prepared and becomes a definitive map it is a map as modified by orders, which lends support to the view—and I have some legal advice which says that this is a tenable view—that the orders themselves are not part of the definitive map until the Clause 45 procedure is gone through and a new one is produced.
§ These amendments do not try to change any existing intention in the Bill at all. What they do try to do is put right the submission by making it clear that orders will legally form part of the map and statement as soon as they take effect. This applies with equal force on those who want to close or divert footpaths and those who want to have them established, or those who want to raise or lower a right of way; but it really does seem a bit ridiculous that, once one has gone to all the trouble of getting an order and getting it agreed, it should not then definitely form part of the definitive map and statement—and the amendment simply ensures that that would happen.
§ As I say, despite the Government's view, which they expressed at Committee stage, that this is in fact what happens under the Bill, my legal advice is that it is not the case and that in fact the court, in looking at the wording of the Bill, and particularly in view of what Clause 45 says, would probably take the view that these orders do not form part of the definitive map and statement until the Clause 45(2) procedure is gone through. It is a minor clarification but an extremely important one if I am right and the Government are wrong. In any event, it seems sensible, given the amount of effort put into making orders, to make absolutely certain that they legally become part of the map once they are finalised, and I hope this will be acceptable to the Government. I beg to move.
§ Viscount Hanworth
My Lords, I would simply say that so far as I know there is nothing between the Government and ourselves as to the intention; but if this has been looked at rather carefully by a solicitor and a barrister—and I think there has been other legal advice—and that is the way they read it, there surely is a clear case, whether or not the Government think it is covered, to make the situation utterly clear. I know that the objection sometimes raised against doing this is that it is repetitive, but there is absolutely no excuse for not making a Bill as clear as it can be.
§ Lord Bellwin
My Lords, as the noble Lord, Lord Melchett, indicated, these amendments are similar to those tabled in Committee by the noble Lady, Lady Kinloss, in as much as they would ensure that changes 558 to definitive maps and statements embodied in orders are subject to the provisions of Clause 44 regarding conclusive evidential effect of definitive maps and statements. I said, in connection with the noble Lady's amendments, that we felt that they were not necessary. Having gone round the track again, we still feel that that is the position. I recognise the wish to have it clear so that there should be no misunderstanding. I understand that that is the sole objective of the amendment. Our legal advice is that it is covered in the Bill already, as I have said before. I could go over my note here and restate the arguments, but there does not seem to be much point in doing that. It is a question of whether or not the legal opinion to which the noble Lord, Lord Melchett, refers is the right one or whether the advice that I am given is right. It is a question of fact. I am assured that the concern expressed need not be felt. For that reason we do not wish to accept the amendment.
§ Lord Fletcher
My Lords, I hope that your Lordships will not be satisfied with that reply. It is not good enough for the Minister to say that it is a question of fact. He also said that the amendment is not necessary. It is not a question of whether it is necessary but a question of whether it is desirable. It may or may not be necessary, but it is surely in the interests of clarity that the position be made abundantly clear. There cannot be any valid objection to the amendment. There may be a difference of opinion between legal advisers as to whether it is necessary or not, but that does not conclude the matter. If an amendment of this nature is put forward in the interests of clarification, and if it is argued, as my noble friend has argued, that it is desirable to have it, surely the Government should have the courtesy to accept it. It cannot do any harm to accept it and I invite your Lordships to express the view that the Minister's reply is thoroughly disappointing.
§ Lord Avebury
My Lords, I was very disappointed in what the Minister said. I have always understood that the one essential of good drafting is certainty. If there is a difference of opinion between the Minister's advisers, on the one hand, and the advisers who have helped us, on the other hand, then the safe course of action is to take the step recommended in this amendment and incorporate the words in the clause. May ask the Minister this? If that is done, will there be any difficulty in the courts that he can foresee on the construction of the Bill by reason of the addition of those words? If he says "No" to that question, then there can be no objection to having the words there. But there can be the advantage that the Act must be construed not only by lawyers but by people like ramblers who are not necessarily legal experts but who want the words in the Bill to mean what they appear to mean.
If the definitive map and statement is not to include the additional words suggested in this amendment, then most people reading it would think that those orders did not form part of the definitive map and statement. The noble Lord says that they do, but the Bill does not say that. This Bill has to be read by many people who are not legal experts. There is a dispute which could go wrong if the Minister's advice is incorrect, 559 and lead to some expensive litigation in the courts as to the exact meaning of this term—and this is something which could easily be put right if the amendment is accepted. Secondly, and more importantly, this Bill affects a large number of people who enjoy the countryside. They want to be able to read the Bill and to understand it.
§ Lord Bellwin
My Lords, with h leave, perhaps I will now give the detail that I was trying to avoid having to do before, in that the noble Lord, Lord Fletcher, felt that my response was less than satiafactory. The fact is that Clause 41(2) states categorically that authoritiesshall by order make such modifications to the definitive map and statement as appear to them to be requisite".The only possible construction that can be placed on this provision is that the definitive map and statement is modified immediately the order is made and takes effect. That there may be a hiatus between the order taking effect and the information it contains actually being shown in the definitive map and statement does not undermine that fact. The situation whereby definitive maps and statements will not in practice reflect the actual effect of orders immediately is recognised by the fact that the Bill includes a specific provision—Clause 45(2)—which enables authorities periodically to reproduce a copy of the "modified map and statement" which shows the actual changes embodied in orders. The Bill was also amended in Committee to ensure that until the "modified map and statement" is reproduced copies of orders are placed on deposit for public inspection together with the map and statement they modify.
Despite what was said, I am content that the Bill's provisions do not require additional clarification. To take up the point made by the noble Lord, Lord Avebury, I could not accept that as an argument. If you always took account of that, where would you he in the end?
§ Lord Melchett
My Lords, you would be with clear, concise and unarguable legislation. The noble Lord, Lord Bellwin, did not answer the question that Lord Avebury asked. That question was: if this amendment were put into the Bill, would it lead to any problems with interpretation? The noble Lord's quotation from Clause 45(2) does lead to a problem. It does not seem to be clear to me, reading it as somebody who is not a lawyer. The legal advice (as my noble friend has said, and as was said by the noble Viscount, Lord Hanworth) was given to a consortium of all the interests involved in public rights of way. The advice by solicitors and counsel has been that the Bill is not clear and that it is possible that all the process of order-making will he gone through, and that that will not be taken to alter the definitive map until the procedures in Clause 45(2) are gone through. It would be a disaster if that were the case. Is it a risk worth running? I cannot understand why the noble Lord wants to run it. I accept that he has clear legal advice, on the one hand and the people behind the amendment have clear legal advice.
It is not the sensible and reasonable thing to do for Parliament to put the provision beyond doubt by 560 including the amendment? Unless the noble Lord can tell us that the amendment will do harm, I cannot see why the noble Lord should withdraw the amendment.
§ Lord Bellwin
My Lords, if the House will allow me to speak again, I think you can take this argument all ways. You can say that this will do no harm, but my advice is that it is not necessary. But the one point that I make (and I have said this on all the Bills I have dealt with) is that we want the best and clearest Bill we can get. If it is felt that there may be a difficulty of the kind referred to, and it is felt that it is not clear, I will undertake to take the point back and look at it and discuss it again with the legal advisers. Should the situation be as the noble Lord has said, we will have no hesitation in making a change. However, I think at this moment that I would be no more justified in accepting that what the noble Lord has said is right, so far as his legal advice is concerned, than I would be in turning down the advice by my legal advisers. But I accept there may be a point and we will look at it.
§ Lord Melchett
My Lords, it might be for the convenience of the House if that were treated as an intervention in my speech so that both the noble Lord and I will not be too seriously out of order. It is not a point of substance. We agree on what we want to achieve. It seems silly on an important point to leave it as drafted in the Bill with lawyers disagreeing with each other over the interpretation. That will end up in court and could go either way. The noble Lord said he will look at it again. I am grateful. It may be possible for the lawyer who has advised us to get in touch with the lawyer who advised the noble Lord, and to let them sort it out. That might be quicker and simpler, if not cheaper. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 173SB not moved.]
§ The Deputy Speaker (Baroness Wootton of Abinger)
My Lords, I have to point out that if Amendment No. 173SC is agreed to I shall not be able to call Amendment No. 173SCA.
§ 5.51 p.m.
§ Lord Melchett moved Amendment No. 173SC:
Page 36, leave out lines 1 to 8 and insert—
("(ii) that a highway shown in the map and statement as a footpath ought to be there shown as a bridleway or byway open to all traffic or that a highway shown in the map and statement as a bridleway ought to be there shown as a byway open to all traffic;
§ (d) the discovery by the authority of evidence showing beyond a reasonable doubt—
- (i) that a highway shown in the map and statement as a byway open to all traffic ought to be there shown as a bridleway or footpath, or that a highway shown in the map and statement as a road used as a public path or bridleway ought to be there shown as a footpath;
- (ii) that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.").
§ The noble Lord said: My Lords, this is also an amendment which we dealt with at the Committee stage. Its effect would be to require a higher standard 561 of proof before an order is made to downgrade or delete a right of way already shown on the definitive map than is required before an order is made to add or upgrade a path. It has been the case since the introduction of the definitive map legislation in 1949 that surveying authorities should take steps to include rights of way on drafts of maps wherever, in their opinion, such rights are reasonably alleged to subsist; in other words, where on balance they believe that the evidence indicates the existence of public rights.
§ In extending this principle to the making by authorities of orders to downgrade or to delete a way already shown on the map, the Bill has raised some very real fears. If I may say so to the noble Lord, it has seriously upset the balance which has existed since 1949 between those interested in maintaining public rights of way and those interested in ensuring that there should not be too many public rights of way or that, where there is not a very strong case, they should be taken off the list. There has been a balance. Although it has led to a large number of appeals that the Department of the Environment have not been able to deal with as speedily as everyone wished, nevertheless that balance seemed to be a fair and reasonable one. This provision upsets that balance.
§ What those interested in the use of public rights fear is that the definitive nature of the definitive map will be undermined and that many orders will be made to delete or downgrade ways which are already shown on the map. The whole point as I understood it (as something of a non-expert in this field) is that the definitive map should, so far as possible, be regarded as definitive. I always thought for myself, speaking as a rambler and a farmer, it was rather good that when the ordnance maps came out—the most recent series—we all knew that the public rights of way marked on them were more or less definitive. I know there were some changes in both directions, but the general feeling was that at last we had something which was at least intended to be definitive. This would drive, if not a coach and horses at least a small pony and trap through that definitive nature of the definitive map.
§ My Lords, if the amendment is accepted it will not mean that orders to downgrade rights of way cannot be made but merely that before making such an order the authority must be satisfied beyond a reasonable doubt that the evidence does not justify downgrading or deletion. There is nothing in the amendment—and I say this to noble Lords opposite in particular, who I know are listening with great care—which prevents the correction of mistakes on the definitive map. I know that both sides feel that there have been some mistakes. That is where it can be shown quite clearly—in other words, beyond reasonable doubt—that mistakes have been made.
§ Why should there be a distinction (which is what this amendment would achieve) between proposals to upgrade rights of way and proposals to downgrade them? Is that fair? I think that it is, for this reason. Where a proposal is put forward to put a new right of way on a map or to upgrade a right of way from a public footpath to a bridleway or whatever, the individuals affected, the owner and the occupier, will personally have to be served with a notice that this is intended and will personally have every opportunity 562 to object and to present a case against this.
§ Where a proposal is made to downgrade a path, all those that use it are not served with a notice personally that that is going to happen. All that happens at the moment is that there will be an advertisement in a local newspaper. That might be all right if everybody living locally read the local newspaper and they were the only people who might happen to use the path, but I do not believe that either of those facts is the case. There will be many people who do not read local newspapers—newspapers are very expensive nowadays. Secondly, many people from outside that immediate area will possibly use the path and will wish to object if it is downgraded.
§ In other words, there is not, by the nature of things, exact equality between the two interests involved. The landowner's and farmer's interest is very particular and important. They get a personal notice when a change is going to be made. The public interest, represented by the users, is much more diffuse and may be spread over the whole country in the case of some paths. It will not be particular to certain individuals, and they will not have notices served on them personally; it will simply be a notice in a local paper.
§ I do not think that it can be claimed that these two interests should be treated in exactly the same way; otherwise, it would be argued that farmers and landowners could rely on an advertisement in the local paper just as well as public path users. I would not accept that argument. I hope that noble Lords opposite will not suggest that although that applies there should be the same evidence for both sides, which this amendment would change. I hope that explains the amendment as clearly as possible and that the Government will accept that the position as it was since 1949 should continue to apply. I beg to move.
§ Viscount Hanworth
My Lords, proof of right of way often depends on local knowledge going back a long way. In a number of cases the people who would be able to provide the information that that right of way really was there are likely to be dead. That is one reason why one has to be more careful in abolishing a right of way than in establishing one. The other aspect was the thinking for years and years—until this Bill came up—that it was res ajudicata, which means that the matter has already been decided and that only if there is good reason should it be opened up again. If one does not have that idea one can imagine that landowners or others might frequently raise this at intervals. This would be a great nuisance and would mean that those who were interested in a right of way would no doubt have to spend a lot of money in fighting the case over and over again. I hope that the Minister will once again look at this very reasonable amendment.
§ Lord Stanley of Alderley
My Lords, I thought that the noble Lord, Lord Melchett, was particularly plausible today, which makes me very suspicious of him. He did, in his own words, try to drive a cart and horses, and then he realised that he should not have used those words because that is exactly what this amendment, as I see it tries to do. It is what I have marked in my brief as "all up and no down". It is easy enough to make better rights of way—that is, footpaths into bridleways and bridleways into byways open to all 563 traffic—but we are not allowed the same procedure going downwards. I am afraid that I cannot accept his very plausible (and I admire him for it) argument why it should be like that. I hope that the Government will resist it.
§ Lord Bellwin
My Lords, in the first place, the amendment would prevent the upgrading of a road used as a public path to a byway open to all traffic. I must confess to not understanding why the amendment should deal with RUPPS in the context of Clause 41 when Clause 42 provides for their re-classification. Be that as it may, I cannot accept the desirability of preventing upgrading to a byway if the evidence supports it. The amendment then requires that evidence of downgrading should put the matter beyond reasonable doubt. I find the application of the onus of proof appropriate to criminal matters curious and unsatisfactory. I cannot see why, if there is substantial evidence to support a proposal, the ordinary civil test, which requires that the evidence should put the matter beyond reasonable doubt, should not prevail. I think it would be wrong not to act if such evidence were available.
Finally, because I do not think there is anything further I want to add, the amendment seeks to prevent a RUPP—and what an unfortunate name that is—from being downgraded to a bridleway. I cannot see any justification for the proposal unless there is evidence of the non-existence of bridleway rights. However, I would point out again that it is really out of place to deal with RUPPs in Clause 41 when Clause 42 deals with them. As always, I have listened carefully to the noble Lord, Lord Melchett, but I think, as he said, that this is perhaps not the most important part of the Bill. I do not think we can accept the amendment.
§ Lord Melchett
My Lords, it is not the most important part of the Bill, and I daresay we would all wish to get on to that. This provision was in the previous legislation and has worked perfectly well, so far as I am aware. Indeed, I think it must have worked perfectly well so far as the Government were aware, because they did not mention the possibility of changing it in any of their consultation papers. This was a change, as I understand it, which was sprung on those affected in the Bill when it first appeared. The noble Lord, Lord Stanley, says that the more plausible I am the more suspicious he gets. I just wish that occasionally he would listen to the arguments, and, if they are good arguments, that he would be capable of accepting them without this deeply suspicious nature, which I must say is not characteristic of most farmers most of the time. I am afraid the noble Lord, Lord Stanley, will be giving us all a very bad image.
This amendment is not one that I want to press. I do not think the Government have behaved in a very straightforward way over this. If they had really thought it was unsatisfactory or that there were problems, they would have mentioned it in their consultation papers. It has been brought up very much at the last minute and I am sure it is something that Members in another place will want to pursue, because, if it has worked perfectly well for all those years since 1949 and the Government saw no need to 564 consult about any changes, it does not seem to me fair to make the change in the Bill. For the time being, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.3 p.m.
Lord Monk Bretton moved Amendment No. 173SCA:
Page 36, line 4, after ("description") insert ("except that nothing in this section shall cause an authority to show as a byway open to all traffic a highway formerly shown as a road used as a public path and reclassified as a bridleway or footpath in a review under Part III of the Countryside Act 1968").
The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 173SCC and 173SCE. These amendments deal with the specific question of reclassifying roads used as public paths and they are a vital part in the broader question of vehicles, particularly motor-bikes, on paths. I recollect that if there was one matter upon which your Lordships appeared to display some unanimity at Committee stage it was my noble friend's remark at col. 627 on 17th February that definitive maps of public paths are essentially,
for the benefit of people on foot or on horseback"—
that is to say, rather than for the benefit of people who are motor-cyclists or other off-road vehicle users.
§ I remain concerned about the position because I think the Bill gives greater scope to motor-cyclists to gain further access to public paths, which could be a problem for owners, occupiers and other users of paths. As an instance, I would mention that currently on the reclassification under the 1968 Act of a road used as a public path, where the way is not really suitable for vehicular traffic the present position in the majority of cases is that it will be reclassified as a bridleway. In future, however, where vehicle rights are proven, it appears that it will be much more difficult for the highway authority to classify as a bridleway where vehicular use is obviously pretty unsuitable. That remains a problem, as I say.
§ At this stage I do not want to go too deeply into the arguments because they could go on for a long time, but I want to try to elicit answers to the following points, which are causing me some anxiety. First, is it correct that roads used as public paths which were downgraded to bridleways as unsuitable did not have vehicular rights extinguished? Secondly, can vehicles use such bridleways now? Thirdly, could they do so if this Bill is passed as it now stands?
§ If I may run through the amendments as briefly as I can, No. 173SCC puts back into the Bill the idea of taking account of roads used as public paths and the suitability for vehicles before a track is shown as a byway open to all traffic. No. 173SCA removes from local authorities the obligation to reclassify for a second time those roads used as public paths which have already been downgraded as unsuitable despite ancient carriage use. The reason for anxiety over this is the cost and delay involved in going through all this again, which I feel will be only too likely in a number of cases. I still think more thought is required as to whether it is really justified to go through this long exercise once more. I do not believe there is all that much opposition to that particular amendment from footpath groups.
In connection with Amendment No. 173SCA, in the
second line it says:
nothing in this section shall cause an authority to show".
I should be happy to accept the word "require" rather than the word "cause", if that makes it easier.
§ The third amendment, No. 173SCE, explores the precise status of downgrading under the 1968 Countryside Act. It is believed, I think also by Government, that due to drafting deficiencies, when a road used as a public path with vehicular rights was downgraded to a bridleway the vehicular rights were not actually extinguished. Therefore, much of the work put in by county councils, the Department of the Environment and many individuals could well be wasted unless such a provision is introduced. I merely counsel the virtue of getting a decision of some finality, if possible, on this.
§ I should like to say a word also about the discretion that authorities have when reclassifying roads used as public paths. Previously suitability-of-the-way provisions gave a highway authority a further opportunity if they did not want to reclassify an unsuitable track as a byway. However, my noble friend said that under the Bill local authorities would nevertheless have sufficient discretion. I should like just to make the comment that it seems to me it will appear unfair to claimants—and in this case claimants might well be motor-cyclists—for the local authority to have received good evidence that a RUPP had vehicular rights over it but then not to have acted upon that evidence. The question arises: if the highway authority did that, could the claimant go to court for a writ of mandamus because the highway authority had refused to reclassify as a byway a road used as a public path? It is important to ask very precisely about this point. I do not think that we should allow the possibility of such court actions arising.
§ In this connection, the 1968 Act has led to 12 years of contention on this point and it would seem a great pity not to try to avoid the problem now. I am very anxious that my noble friend should find it possible to take back these amendments and have a good look at them. I am sure that they are not perfect, but I hope that he now understands what I am anxious to try to achieve. I believe that there is considerable support for some of them and I hope, therefore, that he will be able to yield us something. Otherwise, in certain cases, I shall feel obliged to press them. My Lords, I beg to move.
§ 6.11 p.m.
§ Lord Melchett
My Lords, for myself I am not quite clear why the noble Lord is taking these three amendments together, but, certainly, I find great difficulties with Amendments Nos. 173SCA and 173SCC. The proposal in No. 173SCC, which I think is taken from a proposal that was put forward to the Countryside Act, seems to me to be far too subjective to make good law. I am not sure that it would be fair in Amendment No. 173SCA to prevent a surveying authority from taking account of a period of 20 years' use by motor vehicles of something which was reclassified as a footpath or bridleway. That seems to me to be a little excessive.
But as regards Amendment No. 173SCE—that is the later of the three amendments to which the noble Lord has spoken—I must say that I have a great deal more sympathy. As I understand it, that amendment 566 makes clear that where a way formerly shown as a road used as a public path has been reclassified as a bridleway or footpath, any vehicular rights which may have existed have now been extinguished. In other words, when something is reclassified, that is that. The vehicular rights, if it is reclassified from a RUPP to a bridleway or footpath, are extinguished and that should be that. As I understand it, that is what Parliament intended when it passed the 1968 Countryside Act. It seems to me a sensible and useful amendment and it is one which I would support, because if you have gone through all the business of reclassifying something, that should then be the end of the matter.
But on the previous amendments, I would say that the test in No. 173SCC is far too vague and I do not think it is fair for Parliament to legislate to ignore 20 years' continuous use by vehicles of a road. That seems to me to be going a bit far. If the noble Lord intends to press any of these amendments, I hope that he will wait and press the third one.
§ Viscount Massereene and Ferrard
My Lords, I should like very briefly to support two of these amendments. Like the noble Lord, Lord Melchett, I shall certainly support No. 173SCE. I cannot see any objection at all to that. I do not quite understand the objection of the noble Lord, Lord Melchett, to No. 173SCC. I understand that it may not be very good law and that it cannot therefore be accepted. But I should certainly like the Government to consider it very carefully and, before Third Reading, to put in something to achieve the same purpose.
What I am frightened of, as I said in Committee, is that if you are going to allow scrambler bicycles and motor-cycles on these paths, where there are children riding ponies—and it is especially children riding ponies that I am thinking of—it may be that, although the ordinary hiker can leap out of the way in time, there will be a lot of nasty accidents with such children. I hope that the Government can accept these amendments, although perhaps I should not be speaking on them without prior study. I hope that Amendment No. 173SCE will be accepted and I should also like to see a new form of No. 173SCC. I do not see why No. 173SCA should not be redrafted and accepted. I do not know what my noble friend will do, but I support the feeling behind these amendments.
§ Lord Moyne
My Lords, I should like to make one small point to which I referred in Committee. If a road has been made into a bridleway, farmers will have put up gates and their agricultural practice will have become linked up with that. If, suddenly, the position is reversed the gates will have to be taken down.
§ Lord Bellwin
My Lords, I must confess that I find this group of amendments, taken together, somewhat puzzling. The first (No. 173SCA), if I have it right, seeks to give a local authority the discretion whether to upgrade to a byway open to all traffic a RUPP which has been downgraded to a footpath or bridleway. In saying this, I am assuming that the omission of the manuscript amendment changing the word "cause" to "require", which was tabled in Committee by my noble friend Lord Monk Bretton, is an error. As I mentioned in Committee, local authorities already have this discretion. The difference between my noble 567 friend and myself is that he appears to think that authorities should not upgrade to byway in such cases, whereas I think that they should do so if there is evidence to justify that course.
The second amendment (No. 173SCC) seeks to include the suitability and hardship tests for reclassification of RUPPs which are found in the 1968 Act. I am against restoring those tests; they are based on subjective judgments and, not surprisingly, have been inconsistently applied. I respectfully submit that they have no place in an exercise whose purpose should be to establish facts. In addition, I regret to say that this amendment is inconsistent with the terms of Clause 42(3), which imposes a clear duty—not stated to be subject to any qualification—to reclassify as a byway where a public right of way for vehicular traffic has been shown to exist.
The third amendment (No. 173SCE) seems to be incompatible with No. 173SCA. This seeks to provide that where a RUPP has been downgraded on reclassification under the 1968 Act all vehicular rights are extinguished. If this were the case, then the question of upgrading to a byway could not arise as there would be no basis for so doing. But, in any event, as I have said, we are seeking to base the definitive map on a purely fact-finding process; a process which will tell us what rights of way exist, not what rights of way should exist. Furthermore, it would surely create an anomalous situation whereby vehicular rights were irrevocably lost in areas where special reviews had taken place, while they would continue to exist in those areas which had been slower off the mark. I should not have thought that that was a satisfactory situation.
My noble friend asked three specific questions. He asked: are vehicular rights extinguished? I submit that the answer is, no, they are not extinguished. He also asked whether byways can at present be used by vehicles following reclassification. The answer to that is, yes. The answer also is that under the Bill the position will be the same. I hope this is of some consolation to my noble friend.
I am most anxious to be helpful. I remember that when we discussed this subject during the Committee stage much concern was expressed about the effects of what was proposed. However, the more we have thought about it the more we have come to the conclusion that we have it just about right now. We shall carefully study what my noble friend has said—sometimes it is very difficult to follow detailed technical points as they are made—but unless it then appears that we might be able to make some move in the direction of my noble friend, I fear that we shall be unable to help him. Certainly we could not accept the amendments as they are now drafted.
§ Lord Monk Bretton
My Lords, I thank my noble friend for his reply to Amendment No. 173SCA. I am not very clear as to why the noble Lord, Lord Melchett, is concerned about 20 years of continuous use being ignored. This RUPP which has been reclassified has probably been reclassified as a bridleway over the last few years. The point I want to put to my noble friend on the Front Bench about it is this: If the highway authority have a very good reason for not wanting to have to reclassify an RUPP and to classify 568 it upwards to a byway from a bridleway because of ancient traffic use, it is probably because the highway authority will then have to have recourse to a road traffic order and all the further expense and delay thereby involved. However, at this stage I will withdraw Amendment No. 173SCA.
§ Amendment, by leave, withdrawn.
§ 6.22 p.m.
§ The Earl of Caithness moved Amendment No. 173SCB:
Page 36, line 8, at end insert—
(" 4. (a) In the exercise of its duty under subsection (3) an authority shall disregard the expiration, in relation to any way in the area to which the map relates, of any period such that the enjoyment by the public right of way during that period raised a presumption that the way has been dedicated as a public path where such a presumption is based on the inclusion of the way in any definitive map and statement and evidence has been discovered that the way ought not to have been shown as a public right of way, or ought to have been shown as a highway of a different description.
(b) In the exercise of its duty under subsection (3) an authority shall have regard to such physical features of a way as may be evidence as to the existence of a public right of way, or the correct description of that way, notwithstanding that such features may have been removed or altered consequent upon the inclusion of the way in a definitive map and statement.").
The noble Earl said: My Lords, I should like to speak to this amendment and also to Amendment No. 173SCD, both of which are similar to amendments which we put down during the Committee stage. May I speak also to an additional and more limited amendment, Amendment No. 174YB? The nub of the problem concerns prejudice and whether a landowner or occupier can bring evidence after a period of 20 years. We believe that we have the Government's support. My noble friend Lord Bellwin wrote to me and said:
I would support the view that the decision on whether the path or way did or did not exist should turn on the consideration of evidence. In other words, evidence should always take precedence over the conclusive evidential effect of definitive maps, otherwise the ability of landowners to rectify errors which affected their interests would be severely limited".
During the Committee stage we received rather a different answer from the Front Bench. It was upsetting in so far as it implied that, while many users have constantly protested against definitive maps while the farming and landowning community have generally supported the Government in accepting definitive maps where they exist and have waited for their opportunity to bring evidence, farmers and landowners should thereby be penalised.
§ This leads directly to a question which still requires clarification. Must an individual with an apparent error remove physical features because the council or users consider them to be obstructions? To date, most farmers have allowed use pending an inquiry, but the rising potential for the expiration of 20 years while awaiting such a review must lead to considerable worry. It is unclear whether there is any way in which an individual can defend himself against the claim that although an error was made in the first place, 20 years have now expired. It is also unclear whether there is any difference between 20 years merely on the map and 20 years of use in consequence of mapping. Furthermore, it is unclear whether a sign inconsistent with 569 dedication which is erected by an individual as would normally protect him against a claim of dedication is of any use when there is already conclusive evidence due to a definite mapping error.
§ It must be remembered that many people have not yet had an opportunity to bring forward their evidence and have it heard. It is generally acknowledged, not least by the users in pressing the amendment that the Government have now accepted to Clause 44, that the original definitive mapping process was defective. Not least in these deficiencies was the fact that owners and occupiers were not informed of claims on their land. There is manifest injustice, in that the individual may be prejudiced because the authority has not carried out its supposedly quinquennial review.
§ The new Amendment No. 174YB is therefore a minimal suggestion. It asks only that farmers and landowners should be given a seven year period during which any prejudice arising from the evidential provisions on the maps should not apply. I beg to move.
§ Lord Bellwin
My Lords, these amendments and the issues which they raise are extremely complex. I make no apologies for assuming, when they came up in Committee, that they were concerned to curtail the operation of the law on the presumed dedication of rights of way. I believe I am now correct in saying that my noble friend is concerned primarily to clarify the situation regarding the relationship between the conclusive evidential effect of the definitive map and statement and the presumed dedication of rights of way.
If this is the case, I think the following explanation will reassure him that farmers who seek, on the production of evidence, to have a way shown on the definitive map and statement down-graded or deleted will not be prejudiced or suffer injustice as a result of the conclusive evidential effect of the map and statement.
The essential feature of the evidential provisions is that the definitive map and statement is only conclusive evidence of the existence of the rights of way shown as at the relevant date accorded to the map and statement. If it were otherwise and the map was conclusive for all time we may as well terminate the discussion now since it would obviously be pointless to legislate for the revision of definitive maps. I am not aware of any suggestion that the evidential provisions operate to prevent the modification of definitive maps or that they take precedence over evidence which shows beyond doubt that the map is incorrect.
Similarly, a definitive map per se cannot in consequence of its conclusive evidential effect give rise to a presumption that a way of the description shown has been dedicated for all time. The sole factor that can give rise to a presumption of dedication of a public right of way is use of the way by the public without interruption over a long period.
In other words, if a landowner produces evidence to demontrate that a right of way shown on the definitive map in a particular status, which has never been used in accordance with that status, should be downgraded a potential objector would be unable to rely on the conclusive evidential effect of the definitive map to support his objection. The final decision on the status of the path would rest solely on the assessment of the evidence. I acknowledge that in the case of 570 reclassification of RUPPs we have made an exception to this general rule by providing that in the absence of evidence of vehicular or footpath rights the evidential effect of the definitive map should prevail to the extent that RUPPs should be reclassified as bridle-ways. We believe this is right. For a way to have been shown as a RUPP in the first place there must generally speaking have been some evidence of bridleway rights. Moreover, under the new criteria applicable to reclassification it seems a reasonable assumption that the vast majority of RUPPs will become byways open to all traffic on the basis of evidence of vehicular rights. In the particular situation highlighted by the second part of Amendment No. 173SCD evidence would presumably be available to show whether bridleway or footpath rights existed, otherwise the description on the definitive map and statement would be otiose.
As for my noble friend's third amendment, I am not sure that it achieves the desired effect because, as I said a moment ago, it is use, not the inclusion of a way in the definitive map and statement, that gives rise to a presumption of dedication.
I hope that my noble friend will feel, in all the circumstances, that the amendments are not necessary and that he will agree to withdraw them. In saying that, I recognise the complexity of the points which he has raised and the answer which I have given, but I hope he will feel able, certainly on considering carefully what has been said, to make such a decision.
§ Lord Stanley of Alderley
My Lords, before my noble friend decides what to say, I like quite a lot of what has been said, but I am not at all happy that that is what it says in the Bill. Unfortunately I have not moved on to the new Bill, I am afraid from laziness, and I still do not think that my noble friend has answered the question that I put to him at the Committee stage in column 639. However, I shall let my noble friend decide what he is going to do about it because that is what is worrying me and I am not sure that the Bill says what he has said or what I thought he said.
The Earl of Caithness
My Lords, this is complicated and I should be grateful if the House would give leave to my noble friend to answer this question: if a definitive map was made, say, in 1954 and for some reason it was wrongly mapped and had been used since 1954 until the present date, which is about 27 years, and one can now bring conclusive evidence that it was wrongly mapped, has the owner or occupier a right to appeal against the wrong mapping?
§ Lord Bellwin
My Lords, I should have thought that he would have the right to appeal, but clearly that is something that one would want to check and confirm.
§ Lord Moyne
My Lords, I do not know whether I am in order in speaking again, but this is a different amendment from the one on which I spoke previously. I should like to raise for my noble friend's consideration whether, if a landowner objects to the suggestion made, during the period of appeal the bridleway can be used as a vehicular way during what may be a very 571 long period. I think that that has given concern to many of us.
§ Lord Fletcher
My Lords, I think that the noble Lord opposite has raised a vital question and I can sympathise with the Minister in not being able to give a reply. I appreciate that it is not easy to give a reply, but he has promised to look into it and to give a reply to his noble friend. I think it would be very useful if that reply could be made general, perhaps in writing, because this is an important point.
The Earl of Caithness
My Lords, in view of the complications that we still seem to be in on this matter, I do not think it has been resolved satisfactorily. I think that the best thing would be for me to withdraw this amendment, and perhaps we could liaise with my noble friend before Third Reading in order to resolve this matter. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 42 [Duty to reclassify roads used as public paths]:
§ 6.34 p.m.
Viscount Hanworth moved Amendment 173SCBA:
Page 36, line 37, leave out ("three") and insert ("two").
§ The noble Viscount said: My Lords, I think it would be for the convenience of the House if, in moving this amendment, I spoke also to the next three amendments and to Amendment No. 173SCDA. I can do all that very briefly. These amendments are designed to simplify and clarify the procedure contained in Clause 42 for the reclassification of roads used as public paths. As at present drafted, Clause 42 allows for roads used as public paths to be reclassified as footpaths if bridleway rights have been shown not to exist. My amendments mean that public paths would automatically be reclassified as bridleways unless vehicular rights can be shown to exist, but would only be classified as a footpath under the provisions of Clause 41. This is a considerable simplification of the Bill as it stands. I beg to move.
§ Lord Digby
My Lords, when I started looking at rights of way I always thought that if there was a bridleway it was as good as having a footpath from the walkers' point of view, but of course it is not. If it is a footpath it should be classified as such because a bridleway can get very muddy if used by a lot of horses and I think that the footpath should be left in.
§ Lord Bellwin
My Lords, I indicated, I think in response to Amendment No. 173SC, that I regard the reclassification of roads used as public paths within the context of Clause 41 as somewhat illogical, and perhaps the most sensible and practical arrangement is to keep proposals resulting from the reclassification exercise apart from proposals arising from the normal day-to-day review of definitive maps. For that reason, I am afraid that I cannot support the proposal. The point raised by my noble friend confirms that there is some blurring in this area, if I may put it that way, and what we are trying to do in the Bill is to get as much clarifica 572 tion as possible. On this particular point we should not be able to accept it for the reasons given, but again it is not with any great happiness that I say that.
§ Viscount Hanworth
My Lords, if my understanding is correct—that is, that a bridleway automatically includes the rights of a footpath—I think that that answers part of the question that was raised. I shall not waste the time of the House as the Minister does not agree with this, but shall simply ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 173SCBB, 173SCBC and 173SCBD not moved.]
§ Lord Monk Bretton moved Amendment No. 173SCC:
Page 37, line 9, at end insert—
("(d) before showing any road used as a public path as a byway open to all traffic account shall be taken of its suitability for vehicular traffic having regard to the position and width of the existing right of way, the condition and state of repair of the way, and the nature of the soil together with the hardship which might be caused by extinguishment of vehicular rights.").
§ The noble Lord said: My Lords, I spoke to this amendment in moving Amendment No. 173SCA, and in moving it, I should like to say a word by way of reply to my noble friend on the Front Bench. This amendment puts back into the Bill the provision to take account of the suitability of the way of reclassifying a road used as a public path, as was done in the 1968 Act. I understand the objection that there was a lack of uniformity in interpretation of the old arrangement, but the question arises whether it is nevertheless worthwhile to endeavour to get over this by issuing a circular in order to overcome that lack of conformity in interpretation. I believe that there are grounds for thinking that it might be worth further thought, first, because it would be better than having to get a Road Traffic Act order if vehicles really have to be stopped on a path which becomes unsuitable or will become unsuitable very quickly.
§ Another aspect of the matter is that, if the question was dealt with all in one in this way, the map would simply say "bridleway" if vehicles were stopped, and there would then be no further doubt in the mind of anyone who looked at the map; they would see "bridleway", and that would mean quite definitely that there was no vehicular use. If it is not done in that way and a road traffic order has to be obtained, it will not be clear from looking at the map whether that has been done or not. I think that that is a point of considerable practical importance. I just wanted to make those points, but I do not wish to press the amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 173SCD and 173SCDA not moved.]
§ Lord Monk Bretton moved Amendment No. 173SCE:
Page 37, line 28, at end insert—
("(8) Where a surveying authority have undertaken a special review under the Countryside Act 1968, and a way formerly shown as a road used as a public path has been reclassified as a footpath or bridleway then public vehicular rights will thereby be extinguished").
The Deputy Speaker
My Lords, there is a misprint in this amendment: it should read "page 37, line 29".
§ Lord Stanley of Alderley
My Lords, before my noble friend makes up his mind what he wishes to do with this amendment, I must say to my noble friend on the Front Bench that I really cannot quite accept his argument. It does seem that this falls in with all the principles of this side of the House, in that it would cut down unnecessary bureaucracy. All we are asking here is that the work which has been done by the local authority to reclassify should not now have to be done once again. But I leave it to my noble friend Lord Monk Bretton to decide what action he will take.
§ Lord Monk Bretton
My Lords, I spoke to this amendment with the other two amendments. Just to remind your Lordships, it concerns the extinguishment of vehicular rights on roads used as public paths reclassiffied under the 1968 Act. I am most grateful for the support that I received from noble Lords. I think, in view of this, that I should prefer to press this amendment.
§ Viscount Massereene and Ferrard
My Lords, may I ask my noble friend a conundrum? I have a drove road in Scotland which goes right across the hills and which used to be used quite a lot. Can my noble friend tell me what is the position of a drove road under this Bill? I have not seen it mentioned in this Bill at all. Does it come into the Bill? It is a road where you drive cattle or sheep. Is it a right of way, is it a footpath, is it a road? Can you ride on it?
§ Lord Bellwin
My Lords, as far as I am aware, it does not come within the Bill, and I certainly have not the faintest idea what a drove road is.
§ On Question, amendment negatived.
§ Schedule 12 [Procedure in connection with certain orders under Part III]:
Lord Bellwin moved Amendment No. 173SCEA:
Page 78, line 40, leave out ("in") and insert ("under").
§ The noble Lord said: My Lords, on this occasion I wish to speak to a series of amendments, Nos. 173SCEA, 173SCEB, 173SCEC, 173SCED, 173SCGC, 173SCHA, 173SCHB, 174ZBD, 174ZBM, 174ZBN, 175D, 175K, and 180BA. Your Lordships will doubtless recollect the undertaking I gave in Committee as to Government amendments to give effect to the alternative procedure recommended by Michael Spicer's informal Rights of Way Committee for publicising definitive map and public path orders. The principal objective of the revised procedure is to dispense with the requirement to publish notices in the London Gazette, thus reducing the expenditure incurred by local authorities in publicising orders.
§ The amendments concentrate on those aspects of the Committee's proposals which are directly concerned with publicity. Those features which in our view are incidental to publicity or do not necessarily provide 574 an alternative to the London Gazette, such as the free distribution of copies of published orders to selected organisations or the posting of a plan with the site notices if practicable, have not been included. Nevertheless, authorities will be recommended to adopt these practices in any post-enactment guidance published. I beg to move.
§ Lord Melchett
My Lords, as far as they go I certainly warmly welcome this long package of amendments, and am grateful to the Government for them. As I understand it, the Government have left out several of the Spicer Committee's recommendations which the noble Lord said at Committee stage he hoped to implement in this package of amendments. I am not on the Spicer Committee so I am not sure about this, but it may be that the noble Lord can confirm whether I am right if I list the things which I think have been left out which were agreed by the local authority representatives together with everyone else on the Spicer Committee. There are four points which I think have been omitted and which I think were agreed, but I am really asking for confirmation.
The first is the requirement for authorities to sell copies of orders to the public. I think that might be covered if the noble Lord is going to accept a later amendment of mine; at least the principle would be covered. I understand that was agreed by everybody on the Spicer Committee, including the local authority representatives. The second point is a procedure whereby individuals and organisations could have copies of notices sent to them by the authorities making the orders on prior payment. This is really much the same point. They would have a sort of standing order arrangement so that, for the convenience of everyone, people could get these things clearly. There is no question of cost to the local authorities because there would be a payment for them. That would have met the problem that those who currently use the London Gazette, which they can order regularly, would have been able to follow the same procedure.
The third thing which seems to have been left out is the requirement for the notice placed on a path to be accompanied by a plan showing the effect of the order. As I understand it, the amendments simply require a notice and not a plan. Obviously, for anybody seeing the notice it is quite a major thing to have the plan there as well. The fourth thing is the requirement for a copy of the order and the plan to be available for public inspection at a place within five miles of the path concerned, or if this is not practicable at the nearest office of the district council concerned.
I am sure it is not intentional, but four of the things which the Spicer Committee agreed on, all of which would have helped the public and those other people concerned to know what was going on, seem to have been omitted from the amendments listed. I hope the Government will be bringing forward some more amendments and will look at the point, if they are not able to answer it now.
§ Lord Bellwin
My Lords, if I may reply by leave of the House, certainly one would want to have a look. I know of no specific reason why they were omitted but there would be no difficulty, unless there were 575 some real objection to their being brought in. If so, I will be in touch with the noble Lord. I hope that that will not prevent his agreeing to what we are proposing in these amendments.
§ On Question, amendment agreed to.
Lord Bellwin moved Amendment No. 173SCEB:
Page 78, line 42, leave out ("the London Gazette and also").
§ On Question, amendment agreed to.
§ Lord Bellwin moved Amendment No. 173SCEC:
§ Page 79, line 1, leave out from ("on") to end of line 4 and insert("—
- (i) every owner and occupier of any of that land;
- (ii) every local authority whose area includes any of that land; and
- (iii) such other bodies as may be prescribed or as the authority may consider appropriate; and
§ (c) by causing a copy of the notice to be displayed in a prominent position—
- (i) at the ends of so much of any way as is affected by the draft order; and
- (ii) at such other places as the authority may consider appropriate.").
§ On Question, amendment agreed to.
Lord Bellwin moved Amendment No. 173SCED:
Page 79, line 9, after ("(b)") insert ("(i)").
§ On Question, amendment agreed to.
§ 6.51 p.m.
Lord Melchett moved Amendment No. 173SCEE:
Page 79, line 28, after ("inquiry") insert ("or hearing").
§ The noble Lord said: My Lords, this is really the most important amendment, or set of amendments, with which we shall deal in this part of the Bill at the Report stage, given that the other matter of some substance and controversy, the question of bulls on public footpaths, we have not returned to after the amendment on that matter was defeated in Committee. With this amendment I have a very long list of other amendments to which I should like to speak, and I apologise for the awkward lettering. The list is as follows: Amendments Nos. 173SCFA, SCGA, and SCGB; Amendments Nos. 174ZBA, ZBB, ZBC, ZBF, ZBG, ZBH, ZBJ, ZBK, ZBL, ZBP, ZCA, ZCB, ZCC and ZCD; Amendments Nos. 175A, B, C, E, F, G, H and L; and, finally, Amendment No. 176D.
§ These amendments deal with the question of who should have the final say when there is a dispute about a public path and definitive map amendment order. The Government propose to transfer jurisdiction of this matter to local authorities. I think that there is a unanimous view inside your Lordships' House, and certainly outside the House, that this is really an outrage to every principle of natural justice and is not something which should be accepted. I shall explain why I think that it is an outrage to every principle of natural justice in a moment.
§ These amendments would keep jurisdiction with the Secretary of State, rather than transfer it to local authorities. But Amendment No. 176D—the very last one—gives the Secretary of State power to delegate his jurisdiction to an inspector, so that if this power were invoked the only practical difference between the 576 system envisaged by what the Government have proposed in the Bill and the system which would result from these amendments being accepted is that the inspector who will hear a public inquiry, and who is drawn from a panel appointed by the Secretary of State, will, instead of writing a report making recommendations to a local authority for them to accept or reject as they please, make a decision. That is the system which applies in the majority of planning appeals and which, as I understand it, the current Secretary of State for the Environment would like to see even more widely used in that field—in other words, in planning appeals. It seems to me that if it is good enough for planning appeals it should be good enough to meet this problem.
§ It is supported by the evidence contained in the decision letters on public path orders sent to the Ramblers Association by the Department of the Environment during 1980. There were 207 in all, of which 138 involved an inspector conducting an inquiry or hearing; the remaining 69 being dealt with by written representations. Of the 138 that were dealt with by inspectors, the Secretary of State refused to accept only 14. So out of 138 the Secretary of State was happy with all but 14. In other words, the inspectors were coming to decisions which, broadly and generally—in fact, in the overwhelming majority of cases—were acceptable to the Secretary of State, and it would seem quite reasonable for the matter to be left with them from his point of view. Of the 14 that were not accepted, several of them were refused on legal grounds as under the present arrangements inspectors are not properly briefed on legal issues and are instructed to refer them to the department. Clearly, if these amendments went through it would be necessary for the inspector to be given the legal advice that would avoid those problems. Does the noble Lord wish to intervene?
§ Lord Stanley of Alderley
My Lords, I am getting in a bit of a muddle. Is the noble Lord, Lord Melchett, also speaking to Amendment No. 174YA? He spoke rather quickly, and I do not quite understand whether or not he is speaking to that amendment.
§ Lord Melchett
No, my Lords, I am not speaking to Amendment No. 174YA. That amendment is similar, but it deals with a different point; in other words, it deals with the rights of appeal, but in quite different circumstances. I think the same arguments apply, and that if this amendment is accepted that one would automatically follow. However, this amendment deals with a rather wider question.
In replying to the Committee stage debate for the Government the noble Lord, Lord Bellwin, said on 17th February at col. 663:I should prefer to put the thrust of the argument"—that is, the Government's argument—on the point I made about the responsibilities and obligations of local authorities. They have obligations in this matter. They have to answer and to live with the decisions that they make".I accept that, but I simply do not believe that it is right for a local authority—which is involved in a decision; which may have originated the proposals; which then argues for those proposals at an inquiry or any subsequent discussion; which then makes an 577 order and which then defends the decision to make an order against the objections at the inquiry held by an inspector drawn from the Secretary of State's panel—to be perfectly free, unconstrained by anything in the Bill, to override the inspector, whatever decision the inspector has come to, and decide in favour of its own original proposal. That is why I say that, as the Bill stands, this is an outrage to natural justice.
In fact, what the local authority is being asked to do is, first, to be the arresting officer—it makes the original proposal. Then it is being asked to be the prosecution—it is being asked to advocate the original proposal. Then it is being asked to be the judge and jury in the matter at the end of the day. That is an affront to natural justice; it cannot be right. It has received widespread opposition from many different interests, including, as I understand it, some local authorities, and I hope that the Government will now accept this set of amendments. I beg to move.
§ Lord Bellwin
My Lords, it seems to me that there are two basic questions which arise in this matter. The first is: are local authorities the appropriate level of government to take decisions on such matters; and, secondly, if so, are they capable of discharging that responsibility fairly and efficiently? We had a long debate on these questions in Committee, and I do not propose to rehearse the same arguments at length again. But let us for a moment consider what we are talking about. We are talking about two things: first, definitive maps of public rights of way; and, secondly, public path orders.
Let us look first at definitive maps. This is no more than a record, a catalogue of what exists, which needs to be brought up-to-date, corrected and kept up-to-date. What, one may think, could be simpler? We have learned that it is not as simple as all that; that the establishment of what exists is not always easy; that there is scope for conflicting views which may be difficult to reconcile. But, in essence, what we have is a quest for facts, based on evidence which needs to be examined closely. What we need, therefore, is a forum where this evidence can be sifted, presided over by a person who is independent of the parties who may be bringing forward the evidence. I think that so far we are in agreement. But we are providing this and, as I say, so far there is no difficulty.
However, the problem is what should happen next? Should this person take the final decision? Should he report to the Secretary of State or should he report to the local authority? I find the first option unacceptable. It seems to be generally agreed that the person to conduct inquiries should be the inspector from the department—there is no difficulty there. But he is, after all, an official and I consider that the suggestion that, as an individual, he should be placed in a position of jurisdiction over an elected body like a county council cannot be right.
Therefore, the choice rests between reporting to and final adjudication by the Secretary of State and the local authority. I put it to your Lordships that, in the light of what is involved here, the justification for involving the Secretary of State is very slim indeed. What we are being asked to accept is that each and every objection made to every definitive map order is an issue of such importance as to warrant the attention 578 of the Secretary of State. I do not minimise the importance of rights of way when I say that I find that suggestion difficult to accept.
Therefore, we are thrown on to the third solution; that of requiring the inspector to report to the local authority. Again, bearing in mind the issues involved—that all we are engaged in is a search for facts—I find that solution not unreasonable.
I turn to public path orders—creation, diversion and extinguishment orders. What we have to ask ourselves now, is whether there is sufficient distinction between these and definitive map orders to justify treating them differently. I acknowledge that now we are no longer talking about a record or a catalogue. The issue now is whether a path should be created, diverted or stopped-up. We are now no longer seeking to establish facts; we are concerned with the merits of doing something, something which it may be in the interests of a local authority to promote. So is the local authority the right decision-maker in this case? The answer to this question I suggest hinges largely on the answer to the second question I asked at the beginning; namely, is the local authority capable of discharging the responsibility fairly and efficiently?
Much has been made of the fact that the local authority will be taking a final decision on something that they themselves have initiated. The judge and jury aspect of it has, of course, given cause for not unreasonable concern. But this is not a situation which is unknown when the Secretary of State himself initiates a proposal the fate of which he will ultimately decide. However, it is usually accepted by the majority of people that there may be cases where the Secretary of State has to do this and where it is not unreasonable that he should do so. In such a circumstance it could be said that he is judge and jury in his own cause.
However, when we suggest that the local authority should have the same privilege in relation to public path orders, there is objection. But why? It can only be that many consider the answer to my question whether the local authority is capable of doing the job fairly and efficiently to be, no. It can only be that people would mistrust the impartiality and efficiency of the local authority and, indeed, there is evidence—and I have to say that in our correspondence there is such concern—that that is the case, and particularly so on the point of impartiality; I make no bones about that. But we must decide whether this lack of trust is justified.
To judge from some of the correspondence, one might think that local authorities are governed entirely by farmers who cannot wait to seize this power so that they can close all the footpaths which cross their land and which they find a nuisance; and that they will not bother to declare an interest while they are doing so. The situation is simply this, and here I conclude because we can talk at length about it and at the end of the day we must come to a view: we had long discussions in Committee on this. It will be open to anyone to object to any proposals which an authority may make. Those objections will be heard and carefully considered by an inspector appointed by the Secretary of State. The findings will ultimately be published, with all the implications which will flow from that and from the knowledge that the findings will be published. The authority will come to a decision, taking 579 those findings into account.
For myself, I have enough faith in local government and those who work in it to say that I firmly believe that such an order of procedure will lead to no less fairness in reaching decisions than if it is to be made obligatory for the Secretary of State to be the final arbiter. I invite your Lordships to share that faith with me.
§ The Earl of Onslow
My Lords, as a co-mover of this amendment I let my name go forward on it because in Clandon in Surrey, where I live, there was an old footpath which, after much argument, the local authority wanted to divert. I would hasten to add that I think that Surrey County Council is a good and conscientious local authority. Of course, people have arguments with it, but on the whole it is a good and conscientious local authority.
That county council was taken to the High Court by Send Parish Council to get a writ of mandamus and it was told to carry out its duties according to the law, with some fairly scathing comments on the part of the judge in the High Court. It seems to me that local authorities ought not to be able to be judge and jury in their own case. When my noble friend Lord Bellwin says that for the inspector, who is not elected, to have the final say is wrong, I would point out that surely the High Court judge who in this case ruled on the writ of mandamus was also not elected. Therefore, according to my noble friend's argument, perhaps that also would be wrong.
That is all I have to say. It seems to me to be a fairly strong argument for maintaining the ultimate power of the Secretary of State. Incidentally, the Secretary of State being judge and jury in his own case must, I suppose, be acceptable; it is not ideally acceptable, but let us not add extra cases where one is not really quite good enough.
§ Lord Fletcher
My Lords, as my noble friend on the Front Bench said, this amendment and this series of amendments raise a very vital question: that of justice. It is important that justice should not only be done, but should be seen to be done. The Minister posed this question, which is quite a fair question: are local authorities capable of doing the job fairly and efficiently? My answer to that is, no. Some local authorities may be capable of doing it; other local authorities are not capable of doing it. I do not think that the public and the parties involved in these matters will have confidence in the complete impartiality of some local authorities.
It is not use saying that they are elected bodies. These questions involve judicial decisions; local authorities are not experts in arriving at impartial judicial decisions. The inspectors appointed from a panel chosen by the Secretary of State have experience in weighing evidence and reaching impartial judgments on matters of fact. It seems to me to be totally wrong that we should legislate to enable a local authority to ignore and oppose a recommendation made by one of Her Majesty's inspectors so appointed.
The Minister says that there is an analogy by reason of the fact that sometimes a Secretary of State must be judge and jury in his own cause. But, as has been pointed out, in those cases the citizen has a remedy; 580 that is, the remedy of going to the courts and asking for a writ of mandamus. It is rarely used, but it is a very valuable reserve power. It could be said that a citizen has the same right in the case of a decision by a local authority, but surely it is not fair to put the citizen into that situation. Surely the right course is to ensure that, when there are controversial decisions, there should be some impartial judge to decide on the merits, and that the local authority, as one of the contestants, should not have the final right to a decision or right of veto. It seems to me that there is such a vital principle at issue in this case that I hope my noble friends will support these amendments in the Lobby.
§ 7.10 p.m.
§ Lord Stanley of Alderley
My Lords, before my noble friend replies, I spoke to this at Committee stage and I must support this amendment for all the reasons I supported similar amendments on local government land planning. I would just say that in the article my noble friend quoted which appeared in The Times today, I must take exception to it. So far as I am concerned, The Times is quite entitled to its opinion, but it must try to report factually, and on this occasion it stated that the National Farmers' Union has been against this, but the National Farmers' Union has never been against it. Indeed, it was in the National Farmers' Union's brief.
§ Lord Avebury
My Lords, I hope that it will not go on the record that those of us who support the amendment are in any way trying to question or undermine the integrity of local authorities. That is not our objective at all. In insisting that this goes forward to a Division we are not saying that local authorities are likely to act as the noble Lord, Lord Bellwin, said, unfairly, or irresponsibly or, inefficiently. What we are saying is that there may be genuine differences of opinion on the merits of these proposals which we are not happy about leaving to the local authorities, as the originators of those proposals, to be in the last position to decide. There is no way in which we can conceal the difference of opinion which exists here, and we do believe there should be some way in which these matters can be tested by someone other than those who originally made the decision.
§ Lord Teviot
My Lords, I too spoke on the Committee stage and I just wish to mention one point, as practically every other point has been covered. The only relevant point which I believe has been left out at this stage and which could be mentioned is about the county councils and these footpaths, which are just as much a part of the Queen's highway as any other road, and I support this amendment. Paths go from one county council to another. I think that is a relevant point and one that should be mentioned before your Lordships decide which way to cast your votes.
§ Lord Melchett
My Lords, I believe it is the feeling of this House that we should come to a decision. May I echo what the noble Lord, Lord Avebury, has said; there is nothing, among those of us supporting this measure, critical of local authorities or their elected representatives. Just as it would not be critical of the police to say that it would be wrong for a police 581 officer to arrest somebody and then to act as the judge and jury, and for the police officer himself to sentence the person, it seems to me to be no more critical of a local authority to say that it should be placed in that position by the Government. So far as I can gather, this view seems to be shared by at least some local authorities. Southwark Council has written to me saying that they do not consider this power should be given to local authorities, and I understand that Hampshire, Devon and Wiltshire county councils are also a little uncertain in their attitudes to the Government proposals.
I believe this is an embarrassment to local authorities. They are being placed in an impossible position by the Government. The noble Lord, Lord Bellwin, said that the inspector would be looking at questions of fact. So the inspector is; the inspector will be finding on questions of fact and the Government will then say that a local authority can simply overrule that if they wish. This to me seems to be an outrage, and I hope this House will pass these amendments.
§ 7.13 p.m.
§ On Question, Whether the said amendment (No. 173SCEE) shall be agreed to?
§ Their Lordships divided: Contents 70; Not-Contents 60.582
|Airedale, L.||Loudoun, C.|
|Avebury, L.||McGregor of Durris, L.|
|Birk, B.||Melchett, L.|
|Boston, L.||Peart, L.|
|Collison, L.||Phillips, B.|
|David, B.||Pitt of Hampstead, L.|
|Davies of Leek, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Goronwy-Roberts, L.||Ross of Marnock, L.|
|Greenwood of Rossendale, L.||Sandford, L.|
|Hall, V.||Seear, B.|
|Hampton, L.||Spens, L.|
|Hanworth, V.||Stanley of Alderley, L.|
|Houghton of Sowerby, L.||Stone, L.|
|Irving of Dartford, L.||Taylor of Gryfe, L.|
|Jeger, B.||Thurso, V.|
|Kilmarnock, L.||Underhill, L.|
|Kinloss, Ly.||Wells-Pestell, L.|
|Llewelyn-Davies of Hastoe, B. [Teller.]||White, B.|
|Airey of Abingdon, B.||Killearn, L.|
|Allerton, L.||Long, V.|
|Avon, E.||Lyell, L.|
|Balerno, L.||Mackay of Clashfern, L.|
|Bellwin, L.||Macleod of Borve, B.|
|Belstead, L.||Mansfield, E.|
|Bridgeman, V.||Margadale, L.|
|Brougham and Vaux, L.||Massereene and Ferrard, V.|
|Burton, L.||Middleton, L.|
|Campbell of Croy, L.||Moyne, L.|
|Cullen of Ashbourne, L.||Murton of Lindisfarne, L.|
|de Clifford, L.||Reigate, L.|
|Denham, L. [Teller.]||Renton, L.|
|Digby, L.||Ridley, V.|
|Drumalbyn, L.||Romney, E.|
|Eccles, V.||St. Just, L.|
|Elliot of Harwood, B.||Sandys, L. [Teller.]|
|Ferrers, E.||Savile, L.|
|Gridley, L.||Skelmersdale, L.|
|Hailsham of Saint Marylebone, L.||Strathclyde, L.|
|Halifax, E.||Tranmire, L.|
|Hemphill, L.||Trenchard, V.|
|Holderness, L.||Trumpington, B.|
|Hornsby-Smith, B.||Vaux of Harrowden, L.|
|Hylton-Foster, B.||Vickers, B.|
|Inglewood, L.||Waldegrave, E.|
On Question, amendments agreed to.
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ The Earl of Avon
My Lords, if it is for the convenience of the House, I beg to move that we adjourn further consideration of the Wildlife and Countryside Bill until 10 minutes past eight.
§ Moved accordingly, and, on Question, Motion agreed to.