Access to the Countryside (Northern Ireland) Order 1983 (Hansard, 21 November 1983)

§ The Earl of Mansfield
My Lords, it may be convenient now that we get back to a little access to the countryside. My first duty is to apologise to the House because I was not in my place at the very moment when this order was called on. My second duty is a much more pleasant one. It is to congratulate the noble Lord, Lord Fitt, on his maiden speech. I have had the privilege (if that is the word) of serving (if that is the word) in Ulster only for about six months. I have had the pleasure of meeting the noble Lord, Lord Fitt, on only one occasion which, curiously enough, was a jubilee dinner in honour of the Royal Maternity Hospital. But what I do know is the universal affection with which he is held in all parts of the Province. That extends to people of every creed and of many different occupations. I know that his wise counsels will help your Lordships when Northern Ireland matters fall to be considered in future. I, too, hope that he will not confine himself to Northern Ireland matters alone but, now he has broken his silence, that he will weigh in on all sorts of issues. I for one shall be very happy to listen to him.
I should also thank your Lordships for the way in which this order has been greeted. It is an important order. It will bring the Province into line with the rest of the United Kingdom by introducing legislation which is equivalent to the rights of way and access to the countryside provisions which have been operative in Great Britain for many years. I think that I shall confine my remarks this evening to outlining the main provisions of the order. I can go into any detail if I am interrupted. The noble Lord, Lord Underhill, illustrates the drawbacks of this type of legislation in that we do not have a Committee stage. I am sure that he will forgive me if I say that most of his points were technical and really Committee stage points. I shall write to him about those which I did not scribble down or on which I have not had the help of my officials to answer this evening. I shall send a copy of the letter to every other noble Lord who has taken part in this debate.
What I want to say to begin with is that there have been very wide-ranging consultations with interested 26 bodies in the Province and widespread support for the legislation has been shown. The bodies who have been consulted range from the Assembly itself (which was extremely useful in its consideration of the draft) to organisations such as the Ulster Farmers' Union and the district councils. All in all, there have been pretty full consultations at different levels. Not only were changes made as a result of the consultations, but the revised proposal was considered by the Northern Ireland Assembly. The Assembly welcomed the legislation and put forward 12 recommendations for amendment. Three of them have been included in the draft order and seven of them are already covered in substance in the provisions of the order.
As some noble Lords have said. Part II of the order makes district councils responsible for the assertion and protection of public rights of way and enables them to maintain such ways and to erect guide posts and direction notices on them. Your Lordships will note in Article 3 a change from the published order in that district councils are required to maintain appropriate records of public rights of way in their districts. It is not proposed to introduce a statutory registration procedure with the preparation of definitive maps as provided for in Part IV of the National Parks and Access to the Countryside Act 1949. Differences of scale, land tenure, the number of public rights of way and so on make a less formal approach more appropriate in Northern Ireland. District councils are also empowered to create new public paths, to bring such paths into fit condition for use, to maintain them, to close and divert public paths by order where necessary or desirable and to make appropriate payment or to pay compensation to persons having an interest in the land involved.
A further change has been made in Article 15 to enable diversion of public paths on appropriate grounds. These changes will enable the protection of the flora and fauna to be grounds for diversion or closure. Article 19 has been amended to allow persons other than the occupier of land to make representations for temporary closures or diversions. Part III makes provision for enabling district councils, where necessary, to make formal arrangements with landowners to enable the public to have access to open country such as mountains, moors, foreshore, woodlands and so on for open-air recreation. Article 26 provides for certain categories of land to be excluded from the provisions of this part of the order, for example, most agricultural land and nature reserves, while Article 27 requires district councils, in consultation with the Department of the Environment and other bodies, to keep under review the need to secure public access to open country and to consider what action should be taken, whether by negotiating access agreements with landowners under Article 28 or by making an access order under Article 29, where it is not possible to make an agreement.
Articles 39 and 40 enable the district councils and the Department of the Environment to acquire land, where this is considered necessary, to enable the public to have access. Provision is also made for the safety of the public on the access land and for the payment of compensation to persons having an interest in land which is adversely affected in consequence of the coming into operation of an access order. Part IV 27 contains further powers of the district councils and the department as well as general financial and supplementary provisions. In particular, Article 44 requires district councils in exercising their functions under the order to have regard to the needs of agriculture and forestry and to the need to conserve the natural beauty and amenity of the countryside.
Article 50 empowers the Department of the Environment to grant aid expenditure incurred under the order, while Article 51 enables district councils to make arrangements with landowners or other persons to assist them with functions concerning the protection, maintenance and signposting of public rights of way and public paths, the carrying out of certain works on access land, and to contribute towards the expenses of these volunteers in so doing.
A number of questions were put to me. I think I have illustrated the very wide range of bodies which were consulted, such as the Ulster Farmers' Union and the Ramblers' Association. I was asked about appeals and I think Article 12 was mentioned by the noble Lord, Lord Underhill. There is an appeal to law as of right but it will be for the Department of the Environment to make the actual decision and there will be no appeal from that. Perhaps I might say on this point that the Department of the Environment will be what I might call the "lead department" in this area; but of course it will take advice from the Department of Agriculture for Northern Ireland. I have absolutely no doubt that many of its decisions will be based on the advice it receives from those who are perhaps more versed in agriculture than is the department itself. This applies to what I think my noble friend Lord Brookeborough was saying, that my department, the Department of Agriculture, will have a very full part to play.

§ Lord George-Brown
My Lords, may I interrupt the noble Earl? I do not pretend to be an expert on this but I was rather shaken by something he has just said. He said that the Department of the Environment will take the decision and that there will be no appeal from that. it just struck me, as an ex-departmental Minister, that he is enunciating a new principle. If the department takes the decision, surely it has been the whole of our practice previously that there has to be an appeal against that to somebody—"to Parliament", says the noble and learned Lord the Lord Chancellor sotto voce; to the ombudsman, say I more loudly; to the courts. Did the noble Earl really mean that if a department bureaucratically takes a decision the individual has no appeal to anybody?

§ The Earl of Mansfield
My Lords, no doubt the noble Lord, Lord George-Brown, pulls me up correctly. It is necessary to look at the drafting of the order, and also to have some regard for historical events in Northern Ireland, actually to understand that when I say that decisions will be taken by a department it is in fact a term of art and springs from those functions which originally were transferred to the old Stormont legislature and those which were not. Those which were, were drawn back at the time direct rule was imposed on the Province, but because of the way in which their legislation has been traditionally 28 drafted, and still is, if the noble Lord will turn to the order he will in fact see that it is the department in all these cases which acts in a particular way and not the Minister. I have to confess that when I first came to the Northern Ireland Office I was not a little startled to read that myself.
Regarding appeals, for instance, under Article 12, the matter is going to be very similar to an administrative order which a Minister makes. Of course, as such he bears full political responsibility for it and, as I have already said, an appeal will lie at law and it goes without saying that in a proper case the ombudsman will come in. So that I think the correct way to sum up what I have been saying is that in many ways it is similar to what might be called a compulsory purchase order, and the same safeguards and balances will apply as in that instance.
I was going to answer my noble friend Lord Brookeborough about horse riding. District councils have the power to create new public paths and in each case the district council will decide the type of traffic—I think that is the word: at any rate, those who may use the path, for instance, ramblers, equestrians, cyclists or a combination of these—and the district council will pass by-laws which will regulate traffic in these ways.
The noble Lord, Lord Underhill, referred to the definition of public paths. The district council will have the power to create new public paths and they will have the power to determine what type of path each will be. In other words, it goes back to the traffic point. A public path is defined in Article 2, I think: that is the definitions article.
I think this order will be welcomed by all those who have pressed for legislation to safeguard the right of the public to have access to the countryside. It will also prove of benefit to the farming community. It goes a long way towards reconciling the increasing demand for recreation in the countryside, which has to be balanced with the need for agriculture. It is in that spirit that I commend the order to your Lordships.