HL Deb 15 February 1994 vol 552 cc172-81

8.35 p.m.

Viscount Colville of Culross

My Lords, I beg to move that this Bill be now read a third time.

It is very nearly a year since I asked your Lordships to give a Second Reading to this legislation. Immediately that had been done, an Instruction was moved by my noble friend Lady Macleod of Borve and accepted by the House. I am very sorry that my noble friend Lady Macleod cannot be here this evening, but I have had a number of discussions with her outside the Chamber and I do not believe that she is still unduly concerned, although she certainly was at that time.

Since then, the matter has not gone to sleep. It was referred to a Select Committee, together with the Instruction. That Select Committee was chaired extremely thoroughly by the noble Baroness, Lady Serota. Having read the transcript of the proceedings, it seems to me that her four colleagues— the noble Lords, Lord Beaumont of Whitley, and Lord Crook, and my noble friends Lord Cadman and Lord Moyne— took an extremely full and intelligent part in the proceedings. I am sure that all noble Lords are grateful to them for their contributions.

The committee had to consider the Instruction of the noble Baroness; it had a copy of the full debate which took place on Second Reading; it had a presentation of the Bill by counsel and witnesses; and petitions were put forward. In all, it took eight days to consider the matter and, in addition, at the beginning of July all members of the Select Committee took part in a view. They went to look at the area as a whole and had the opportunity to see for themselves what it was that was under discussion, in so far as they did not know already.

As a result, a document was produced which your Lordships may find extremely helpful. It is a special report from the Select Committee which was ordered to be printed on 18th October. I am sure that the House will be grateful to the Select Committee for doing that and in particular will be grateful for its reasoned decisions on all the points upon which it had to deliberate and the conclusions which were reached.

A substantial number of amendments are set out at the end of the special report. Many of them were introduced by the promoters of the legislation as a result of their continuing discussions and in order to meet petitioners' objections. But some amendments came from the Select Committee in order to meet points that had been made to it.

After that, the Bill went to an Unopposed Bill Committee and, by that time, the Parliamentary Session had ended and it was carried over so that it is now being dealt with in the new Session.

After all that consideration, I am asking your Lordships this evening to send the Bill on to another place in the certain knowledge that, if there are still matters which people in the area or anywhere else think are not right, then the whole process of petitions and the Private Bill procedure can be embarked upon yet again, as before. Therefore, all I am asking your Lordships to do is to send the Bill on its way as part of the parliamentary process.

The Malvern Hills are a term of art. They consist of the land which is controlled by some conservators. The conservators have been set up and empowered by a series of four Acts of Parliament which span a period from 1884, the last of them having been passed in 1930. Their powers are entirely granted by those private Acts, they cannot do anything without the legislative provisions in one or other of those Acts; and, indeed, some parts of the Bill now before the House are there in order to deal with certain matters which went slightly wrong in the earlier legislation.

As noble Lords who were here a year ago may imagine, it is not surprising that after about 64 years there are matters that need updating. That is what the Bill seeks to do. Of course, the Malvern Hills are very special. A great deal of care must be taken about powers that are given to the people who are looking after them. There must also be proper checks and balances. Moreover, should there be extra powers and duties that the conservators should now enjoy and perform? I hope that your Lordships will feel entirely confident that such issues have been very fully explored by the Select Committee process to which I referred.

I am very happy to answer questions about what happened. I do not propose to go into any great detail about the amendments that have been made. However, it looks to me as though the Select Committee did not readily accept that the Bill should proceed in the form that it took after the Second Reading, at the time when the Instruction was granted. The Select Committee looked very carefully at that construction. There are three paragraphs set out in paragraph 5 of the report. Those noble Lords who are interested in the subject will know that very well. However, in the special report there are repeated references to the Select Committee's intention and determination to fulfil the points set out in the various paragraphs of that instruction. One only has to look at paragraphs 54,58,71 and 75 to see that members of the Select Committee had picked out the various points in the Instruction and that they were quite certain that they would give effect to what your Lordships had instructed them to consider most carefully.

The special report contains one telling paragraph, paragraph 49, which states: The promoters' amendments to exclude the application of the bill's more controversial powers from the existing Malvern Hills"— I shall return to that point— have in our opinion transformed the bill. Without these amendments the bill would be unacceptable. With them, the Hills remain inalienable but largely undisturbed; and the balance of argument inclines in favour of a suitably amended bill. With the further amendments tabled by the promoters to meet the petitioners' objections and with the amendments required by us and described in the following paragraphs, we believe that the House may properly give the bill a third reading". I take that to be a fairly severe comment on the Bill. But, nevertheless, it gives a justification to your Lordships to pursue the matter now as the amendments are all incorporated.

There were, essentially, two main areas of opposition. There is great sensitivity about what may be built upon the Malvern Hills, however one may describe them. Originally in Clause 3 there was the power to rebuild one of the two café s on the Hills, the Beacon Café, which burnt down not very long ago. It was in a very prominent position. The original Bill gave the power to rebuild it either there or somewhere else. The Select Committee received representations on the matter which are by no means one sided. But the recommendation made by the Select Committee (which is now included in the Bill) is that there should be no rebuilding of the Beacon Café but that the other cafe, the St. Anne's Well Cafeteria, should be dealt with. That should be enough provision on the Hills. If people want refreshments, they will have to take them elsewhere. Of course, there are plenty of other facilities in the immediate area.

There was also the original Clause 10, which ran into a great deal of criticism. On the face of it, the clause allowed the conservators, as some people thought, to build and sell speculative buildings, especially office buildings, on what everyone thought were the Malvern Hills. Such buildings were for administrative purposes, and so on. However, it was also feared that such buildings could be sold on or, for all anyone knew, could be set half way up the Malvern Hills. Moreover, one has to concede that the drafting was not all that it might have been.

In the event, as regards those two points, there is to be no Beacon Café, but only the St. Anne's Well Café, which is still there. That can be rebuilt if and when it becomes necessary. No other building provision is allowed under the Bill. What is left to the conservators in respect of their intention to provide accommodation for themselves is the provision that they can buy existing accommodation or lease it; but they cannot construct it for themselves.

Theirs is becoming quite an elaborate organisation. At present, it functions from the offices of a firm of solicitors in Malvern. The moment may very well come — and should be provided for if we are not to have legislation more than once every 60 years— for the conservators to acquire the necessary accommodation for themselves. They need room for their staff and for their administration. They also need, though not necessarily there, somewhere to keep the equipment and the machinery that they require to look after the Hills. They may also need somewhere for their small workforce to live. It now transpires that, if the conservators are to have somewhere which is much nearer to the centre of the population and not anywhere right up on the Malvern Hills, there might be a good case to have information offices; in other words, places where you can get maps and so on.

In Clause 2 of the Bill— and unless you are an expert on drafting Acts of Parliament you would not immediately spot it— a new phrase has been introduced: it is, the existing Malvern Hills". That means the land under the jurisdiction of the conservators at the time of the passing of the Bill into law. There are certain things which they cannot do in that respect. Among them is the ability to obtain the new accommodation that they want. They will have to obtain it elsewhere. What is more, if the conservators buy or lease land and it turns out— as may very well be the case — that what is available on the market is more than they require and they need to dispose of any surplus, they will have to make up their minds within a matter of five years whether they will keep it or sell it. That applies not only to land and buildings on the Hills, but also to other land. That is the change, the differentiation, between the existing Malvern Hills and new land which may be bought in the future and which will become the Malvern Hills by definition but which is not yet the Malvern Hills. That is the change that appealed, as I understand it, to the Select Committee. I believe that any possible excesses that might have been feared as regards the way the conservators would use their powers have now been dispelled by the curb that has been put on them and the new device that hats been built in.

The other matters that were discussed— they are important — are the various restrictions upon what can be done. There have always been powers to make by-laws, and indeed there are by-laws. What has been dealt with in this Bill is the opportunity to take into the legislation the modern powers to make by-laws which carry with them modest penalties if anyone is prosecuted.

The modern power enables by-laws not only to be made but also gives a power to consult about them, as the Home Office directs, beforehand. This is a standard formula which applies to all local authorities and for these purposes the conservators are assimilated with other local authorities. Therefore we have now for the first time in the legislation a completely ordinary system of making by-laws which applies all over England and Wales and is familiar to everyone. I think it must be accepted by this tine that the system is working well.

There is also a. provision now— your Lordships would not guess it unless you were told— in the first schedule, and in Clause 25, which opens up the proceedings of the conservators to public access and also gives the public the opportunity of looking at the documents that the conservators produce.

I think there may be one or two other points that your Lordships wish to raise but I believe those are the main matters that were discussed which could be said to go to a principle. There were a lot of other details. There have been many other detailed amendments to the Bill which have been, as I said, either accepted by the conservators on their own account, or imposed by the committee. All of those are now in the legislation, which, if your Lordships read what came before the House on Second Reading, may look quite substantially different from what was then before the House for consideration. I would therefore ask your Lordships to give the Bill a Third Reading in its present form with the knowledge that there is the fallback provision, if necessary, for further petitions in another place. I ask your Lordships to let the Bill go on its way so that the conservators can get up to date with their powers and duties in the 1990s as opposed to what they have had heretofore. I beg to move.

Moved, That the Bill be now read a third time. — (Viscount Colville of Culross.)

8.53 p.m.

Baroness Serota

My Lords, first I wish to thank the noble Viscount, Lord Colville of Culross, for his generous opening remarks and compliments to my colleagues and myself. I also wish to take this opportunity to thank the members of the Select Committee and the Principal Clerk of Private Bills, Mr. Brendan Keith and his staff for their constant support and assistance throughout our proceedings.

I am sure my colleagues would also like me to take this opportunity of thanking the clerk for the conservators and his staff for the arrangements they made for our successful and pleasant visit to the hills on a glorious day last July. We all regret the absence of the noble Baroness, Lady Macleod of Borve, from the House tonight due to the bad weather and the driving conditions that prevail between her home and London. However, I hope she will feel that the Select Committee has paid due regard to the wishes of the House as expressed in the threefold Instruction that she moved on Second Reading of the Bill last March. I was glad that the noble Viscount felt that we had followed that Instruction with proper regard and with due care.

I also hope that the special report to which the noble Viscount referred, and which has been before the House since October of last year together with the list of amendments which we appended to that report, meets the concerns which were expressed on all sides of the House during the debate on Second Reading last March. It is not my intention— certainly not at this late stage and when we are aware that other noble Lords are patiently waiting to resume their deliberations on the police Bill once we have completed our Third Reading— to refer in any detail to the subject matter that is carefully and, I hope, thoroughly stated in the sections of the report dealing with the case for the Bill, the case against the Bill, the committee's opinion and the annex which contains a long list of amendments which we have offered to the Bill.

I would only again refer to paragraph 49 which the noble Viscount read to your Lordships a few moments ago and which, to my mind, sums up the unanimous opinion of the Select Committee, which I hope will enable the House to endorse its findings and give the Bill a Third Reading. The noble Viscount seemed to find our remarks in that paragraph somewhat severe. I personally view them as rather direct. I can assure the House that that was the unanimous opinion of the committee and that we have as far as is humanly possible dealt fairly and thoroughly with the special Instruction. I hope that on that basis the House will tonight give the Bill a Third Reading.

8.56 p.m.

Lord Moran

My Lords, I, too, am extremely sorry that the noble Baroness, Lady Macleod of Borve, cannot be with us tonight because on Second Reading she led the criticism of the original Bill in what I thought was an eloquent and impressive speech and moved that pertinent Instruction which has guided the work of the Select Committee.

On Second Reading I myself spoke critically about the Bill as then drafted. I was particularly concerned about the possible erection of buildings and other structures on the hills. However, the Select Committee's report fully meets the points I made. The Bill as originally drafted was, I believe, far too sweeping in its scope and was in my view rightly described by the Select Committee as unacceptable. It has been transformed by the Select Committee and I think we can all agree that the committee, under the chairmanship of the noble Baroness, Lady Serota, has done an admirable job. The report seems to me a model of what such reports should be. Incidentally, I am sure the report is right as regards the Beacon Café. My view of the report is not one that I hold solely myself. The Open Spaces Society has written to me as it wishes to thank the Select Committee for its excellent work on the Bill. The Countryside Commission has written to me stating: We think this Bill illustrates very well what an important role the Upper House fulfils on this kind of legislation. All of our key concerns about the Bill as it originally stood have now been dealt with and the result is a vast improvement". There is one point which the Open Spaces Society has made to me and is referred to in paragraph 48 of the Select Committee's report; namely, that if the Bill is passed into law there would be five different Acts dealing specifically with the hills. The society asks that the legislation should be consolidated. That is a valid point. I note that the Open Spaces Society made the same point in the petition it has now submitted to another place. It seems to me that not only the conservators but also the general public cannot be expected to understand the complexities of five different Bills with constant cross-references between them. It would be in everyone's interest to have the legislation consolidated.

The Countryside Commission has also said that there are one or two small points it thinks should be clarified. I have mentioned these to my noble friend and expressed the hope that these points can be addressed when the Bill goes to another place. The commission considers that it should be made clear beyond any doubt that the Clause 9 power to acquire buildings by means of purchase, lease or otherwise, does not include the power to construct them, as it did formerly. It believes that it should be made clear whether the Secretary of State's consent is required under Section 194 of the Law of Property Act 1925 for access roads authorized apparently unilaterally under Clause 7A and for fences erected under the power at the end of Clause 15(3), which is exercisable notwithstanding anything in any enactment — a phrase which may cancel out the effect of Clause 21(1). It also believes that Section 194 should probably be made to bite in both cases.

Lastly, the commission considers that the powers to restrict riding in Clause 16 and what follows may be rather too sweeping given that they include no test of reasonableness. It is suggested that perhaps the formula in Clause 15(3), which provides a test of reasonableness in another context, may be the sort of provision which is required.

That said, I believe that this is a far better Bill than that which we considered in March last year. I hope very much that your Lordships will give it a Third Reading.

9 p.m.

The Lord Bishop of Worcester

My Lords, I hope that it is in order for me to speak. As Bishop of Worcester and one who frequently walks on the Malvern Hills, and as one who is married to someone who until a month ago was a conservator, I should like to thank noble Lords for all that they have done. The committee has done what was required. I do not believe that the Beacon Café should be rebuilt. I believe that we are much better off without it.

I believe that the conservators are a body of people who exercise their responsibilities with impeccable care. Chiefly, I wanted to rise to express my thanks for the time which your Lordships have given to what we in Worcestershire consider an important Bill.

9.1 p.m.

Baroness Nicol

My Lords, I must make it clear that, although I speak from this Dispatch Box, the views that I express are my own, as this is a Private Bill, and are not necessarily shared by my colleagues.

We have heard that the noble Baroness, Lady Macleod, has been unable to get here. She telephoned me earlier today and asked me to convey to the House her views on one or two matters. With your Lordships' permission, I should like to do that.

The noble Baroness wanted to say, first, that she feels that the Instruction has been fully implemented. She wishes to thank the committee for its work. It had 10 meetings and committee members went to the top of the hills to see for themselves. The noble Baroness was greatly impressed by their energy and thoroughness. She also wishes me to say that she is disappointed that none of the conservators took the opportunity to meet the committee, either in London or on the hills. That is a pity because it might have helped matters along a little.

I join the noble Baroness, Lady Macleod, in applauding the work of the committee. It has helped to secure a precious piece of our natural heritage for future generations.

The noble Viscount, Lord Colville, explained very clearly that most of the objections raised in the Second Reading debate have now been met, and there is little left to say about them. In particular, I welcome the decision of the conservators not to seek to make trespass a criminal offence. The proposals for powers to control public access now include much better safeguards, and I welcome both those measures. Perhaps I may mention in passing that I understand that in another Bill shortly to come before your Lordships' House we have again to face the problem of trespass being made a criminal offence, but that is an argument for another day.

I support the committee's views on the need to limit the potential for inappropriate commercial activity. At the same time the committee has allowed enough flexibility to raise income from enhanced facilities. That seems much more in keeping with the 1884 Act than the original proposals which were before us.

The only other point that I wish to make is that made by the noble Lord. Lord Moran, and raised by the Open Spaces Society; namely, that with the passing of this Bill the Malvern Hills will be governed by five different Acts. In the interests of good management and open government it is essential that there should be a consolidation exercise. I hope that the conservators will feel that they can take that on as soon as possible. I understand that it is an expensive exercise for them, but nevertheless 1 believe that it is necessary if the public are to understand fully how the hills are to be governed.

With those few comments. I wish the Bill well from now on and am glad to accede to the Third Reading.

9.4 p.m.

Viscount St. Davids

My Lords, it may assist if I intervene briefly to indicate the Government's view on this Bill.

As my noble friend Lord Goschen said at Second Reading, the Government were broadly content with the Bill's proposals, subject to the clearance of some points of detail. Those have since been resolved to our satisfaction so that from our point of view there is no hindrance to the Bill being given its Third Reading.

9.5 p.m.

Viscount Colville of Culross

My Lords, I am very grateful for the reception that the Bill has received from your Lordships. I do not know whether the right reverend Prelate is a wholly impartial witness to the excellence of the conservators, but as a month has passed I am sure that his impartiality has increased. What he said is very much appreciated. One or two sticks and stories were thrown at the conservators in the course of the Select Committee proceedings, and the right reverend Prelate's remarks, as one who knows that part of the world extremely well, will be much appreciated.

I entirely take the point made by my noble friend Lord Moran and the noble Baroness, Lady Nicol, about consolidation. There is no difficulty about consolidation, it is simply a technical matter and, as the noble Baroness said, it is expensive. If the people who pay for the conservators out of the charge which is levied upon them feel that it is essential that there should be a consolidation of this legislation, it is they who will have to pay for it. I suppose that the choice is theirs. I do not believe that I can say more than that. It is all too clear that it is unsatisfactory to have the legislation partly in the Victorian form and partly in the very up-to-date and extremely complex form of cross-referencing in the present Bill. As a former chairman of the Consolidation Bills Committee a long time ago I know the process. It is very complicated and expensive. It would have to be paid for by the people who support the conservators financially through the charges which are made upon them.

That is a matter for the locality. If it is considered essential, I do not believe that the conservators would be averse to it. I have discussed the matter with them. It would just have to be done by some competent lawyers whom I know they have at their command, if they wish to use them. That is as far as I can take it this evening.

As for the points made by the noble Lord, Lord Moran, he very kindly gave me notice of them and I have considered them very carefully. Yes, it is perfectly true that it has been considered very important that conservators should not be allowed to build, particularly speculatively. What I can tell him is that— and I referred to it in my first speech — the conservators are absolutely bound by the powers contained in their private legislation. They are creatures of this legislation. They can do nothing that is not allowed in it. That is why, for instance, in Clause 10 of the Bill powers have had to be taken to borrow for the purposes of the 1930 Act, because that Act unfortunately did not provide powers to borrow for the carrying out of the functions contained in it. That is the sort of strictness with which the law looks upon powers granted by this type of legislation. If the law does not say "construct", it means that they shall not construct. I think that my noble friend had been absolutely reliant upon that.

I still think that Clause 21, as it stands, deals with the requirement to get the Secretary of State's consent for any encroachments under Section 194 of the Law of Property Act. It is very carefully spelt out in Clause 21 and it appears to me at least to be a satisfactory solution to that problem.

The last point the noble Lord raised was whether the provisions about restricting horse riding should be governed by some reasonable provisions. Looking at the clauses relating to horse riding, you see a number of uses of the word "reasonable". My noble friend does not want the conservators to impose unreasonable restrictions. Ultimately brought into this whole realm of law is the position of the conservators as being people who act in the public domain. If they act under the anti-horse riding or limitation of horse riding provisions in this Bill, they are not anti-horse riding; they are there to try to control it so that it is consistent with the amenities and facilities. If they act in ways that no reasonable conservators would act, they are subject to judicial review, for the very reason that they have acted as no good conservators would act. They know that, and so does everybody else.

I hope that my noble friend and those who have been in touch with him from the Countryside Commission will appreciate that the Bill now, in these horse riding clauses, goes as far as is necessary for the legislation, given that there is this overriding provision in the general law about judicial review for such activities. I think that that deals with all the points. I am very grateful for the reception that the Bill has received, and I commend it to the House.

On Question, Bill read a third time, and passed, and sent to the Commons.