Lords Sitting of 1 November 2000

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.

Multiple Sclerosis: Beta Interferon
Lord Mackie of Benshie Lord Mackie of Benshie asked Her Majesty's Government:
Why sufferers from multiple sclerosis cannot receive the drug Beta Interferon in certain parts of the United Kingdom while in other parts it is available.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, it is because of our determination to tackle the problems of postcode prescribing that we asked the National Institute for Clinical Excellence to conduct an authoritative appraisal of the evidence on Beta Interferon as part of its first appraisal programme; NICE has not yet issued any final guidance.
Lord Mackie of Benshie: My Lords, I thank the Minister for that reply. Is it not extraordinary that NICE was asked in August 1999 to report on this important drug but there is still no sign of a report? I understand that appeals have been made. What appeals can there be against clinical judgment and scientific evidence?
Lord Hunt of Kings Heath: My Lords, NICE undertakes a programme which allows for evidence to be carefully considered, for meetings to be held with manufacturers, sponsors and patient groups, for external submissions to be received and for assessment reports— in this case, from the Northern and Yorkshire Drug and Therapeutic Centre—to be made. When that process has been gone through, the initial appraisal committee meets to consider Beta Interferon. It produces a provisional assessment, which is made available to the interested parties. The final appraisal committee has to meet to consider these matters. There is also an independent appeals process. Clearly, there are a considerable number of stages in that process, but I believe that that is right because the guidance given by NICE is crucial in deciding whether a particular drug or treatment is effective and cost-effective. It is therefore right that it has to take some time to ensure that the final guidance is as good as it possibly can be.
Baroness Gardner of Parkes: My Lords, is the Minister aware that the interim report on Beta Interferon issued by NICE was very unfavourably received by sufferers from multiple sclerosis? The report said that the drug should continue to be available to those already taking it but not to others.
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The matter is now being further considered. Can the Minister say whether NICE takes into account the relative cost of £10,000 for the drug—I know that value for money is one of the considerations—as compared with the cost of supporting the patient if he is unable to work and has to rely entirely on the state? Is that one of the factors taken into consideration by NICE, or is it simply a question of the effectiveness of the drug?
Lord Hunt of Kings Heath: My Lords, it is difficult for me to comment on the consideration of Beta Interferon because NICE is still in the process of producing final guidance. It would not be appropriate for Ministers to comment on that process until the final guidance has been received. The noble Baroness asked about the methodology used by NICE. Its task is to access the evidence of all the clinical and other health-related benefits of an intervention. That is taken in a wide sense, to include impact on quality of life, the relief of pain or disability and any impact on likely length of life. It has to estimate the associated costs and reach a judgment on whether, on balance, the intervention can be recommended as a cost-effective use of NHS resources.
Lord Clement-Jones: My Lords, is not the real answer to my noble friend's Question a gross lack of resources on the part of NICE? This year, some 26 appraisals along with other work will need to be carried out by NICE. Next year, 45 appraisals will be carried out. Yet NICE operates with only 28 full-time equivalent staff. Is that why the head of NICE's appraisal section resigned in July this year?
Lord Hunt of Kings Heath: My Lords, NICE has done a valuable job in the year it has been in operation. It has produced a considerable amount of valuable guidance on drugs and treatments. I can assure the noble Lord that we shall keep under review the budget and scale of work that we commit to NICE in order to ensure that it is able to keep pace with the demands being made of it. Coming back to the issue of Beta Interferon, the time NICE has taken to go through the various stages is absolutely justifiable in terms of reaching the right conclusion at the end of the process.
Lord Bruce of Donington: My Lords, can my noble friend give the House the text of the precise factors that are taken into account in determining whether the drug is cost-effective? Can he give an assurance that those who determine whether a particular course of treatment is cost-effective are capable of arriving, from an accounting stand-point, at the precise figures on which he relies?
Lord Hunt of Kings Heath: My Lords, in my response to the noble Baroness, Lady Gardner of Parkes, I mentioned the general indicators considered by the National Institute for Clinical Excellence when reaching a judgment on a treatment's efficacy and cost-effectiveness. NICE's own board and advisory committees, which comprise some of the best experts

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in this country, are able to offer advice on such considerations. The institute must ultimately make a judgment, taking into account factors such as how effective a particular treatment is likely to be, its cost and its impact on patients in the NHS. A balance has to be struck. If drug is expensive but offers only limited clinical benefit, NICE would probably be expected to advise against its use.
Perhaps I may say also that, over the past few months, NICE has sent guidance to NHS organisations recommending that a number of drugs which previously were available only sporadically in the NHS should be made more generally available. As I have said, NICE should have an impact in ensuring that the treatments and drugs used in the health service are both clinically effective and cost-effective. In many cases, if they are, they will be brought into general use within the NHS far more quickly than has been the case in the past.
Lord Roberts of Conwy: My Lords, is it not a fact that Beta Interferon has been made available to certain NHS patients in certain NHS trusts? Does the Minister agree that this amounts to what is, in effect, a two-tier health system?
Lord Hunt of Kings Heath: My Lords, that is precisely why we have referred this matter to NICE. At the moment, health authorities operate a policy introduced in 1995 by the previous government. Essentially, it provides for individual cases to be considered on their merits. It is clear that that has led to enormous variations in policy in terms of the number of people receiving Beta Interferon in different health authorities. The effect of the guidance from NICE, when eventually it is published, will be a much more uniform application in accordance with that guidance.

Nurses: Recruitment
2.44 p.m.
Lord Islwyn Lord Islwyn asked Her Majesty's Government:
Whether they have any new plan to increase the recruitment of nurses throughout the United Kingdom.
Lord Hunt of Kings Heath: My Lords, the Department of Health is improving recruitment and retention by encouraging the National Health Service in England to become a better employer, increasing training places, attracting former staff back to the NHS, encouraging flexible retirement and supporting more effective collaborative international recruitment.
Lord Islwyn: My Lords, will the Minister confirm that nursing is the most understaffed profession in the National Health Service and that a large percentage of student nurses drop out of their training courses? Is this not essentially still a legacy from 18 years of
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Conservative government? Is the Minister not sad to see trusts up and down the country applying to the Philippines, to India, to South Africa and even to China for their recruits? I noticed that my own NHS trust in Gwent has been trying to attract recruits from Finland. Surely that cannot be right. What is needed is a radical reappraisal of nurses' pay and conditions, because nurses certainly deserve better.
Lord Hunt of Kings Heath: My Lords, my noble friend has raised a number of interesting questions. I do not doubt for a moment that the impact of the internal market and the decision of the previous government to stage a number of recommendations from the nurses' pay review body led to demoralisation among nursing staff, alongside reductions in the number of training places. We are now turning this round. We have increased the number of training places. Through our recruitment campaign, we have attracted more qualified nurses back into the health service. Today, 10,000 more nurses are working in the health service than was the case two years ago.
As regards international recruitment, it is clear that we need to recruit more nurses. We have traditionally recruited internationally, provided that that does not have an adverse impact on health service provision in the home countries. I believe that it is entirely justifiable. Indeed, international recruits play an extremely important part in the provision of services by the NHS.
Lord Rotherwick: My Lords, does the Minister agree that it is not correct to seek to benefit our national health system by recruiting nurses from countries such as the Philippines, which has been done over recent years? Surely it is wrong that such countries should be denied the benefit of using their own highly skilled nurses, who have been trained using only the scarce resources that are usually available?
Lord Hunt of Kings Heath: My Lords, I agree with the general proposition that recruiting from countries overseas would not be advisable if that action would have a detrimental effect on the home healthcare systems of those countries. That is why, in November last year, the Government published guidance to the NHS which stressed that, while international recruitment should be valued for its contribution to this country's health services, it is a viable proposition only when, first, its benefit to an individual NHS organisation can be demonstrated and, secondly, such recruitment into the NHS will not have a negative impact on the home country's healthcare system. I am confident that NHS organisations are recruiting internationally according to those guidelines.
Lord Taylor of Blackburn: My Lords, perhaps I may congratulate my noble friend on the campaign

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launched to attract qualified nurses back into the profession. However, I should tell him about one difficulty that has arisen—
Noble Lords: Question!
Lord Taylor of Blackburn: My Lords, is the Minister aware that, even when experienced people do decide to return to the service, they are often placed at the lower end of their grading for pay? That is the case even for those with great experience. Does the Minister agree that this does not serve to encourage experienced staff to apply for posts?
Lord Hunt of Kings Heath: My Lords, my noble friend usually tells me what he wants me to know. I agree that it is important that experienced nurses who are attracted back into the National Health Service after having moved away from their careers for some time should be given every support and encouragement. As regards the issue of grading, of course such matters must be left to be decided by each individual NHS trust. However, I agree with my noble friend that, when reaching such decisions, it is important to take into account the valuable past experience of nurses who have been away from the profession for some time.
Baroness Northover: My Lords, does the Minister agree that, while the recruitment of nurses is clearly urgent, of much greater concern is the retention of staff? Does he further agree that if he were to tackle low morale, inflexible working arrangements and low pay more effectively, that would help to solve the recruitment problem?
Lord Hunt of Kings Heath: My Lords, I certainly agree that the retention of nurses is very important. In regard to pay, our decision to accept without question the recommendations of the pay review body has been a considerable improvement on previous practice. I also agree that introducing more flexible working practices is a way of encouraging more nurses to stay in the National Health Service. There are now many examples where NHS trusts have recognised the need for better HR strategies and improved support. This is paying dividends. We are seeing more nurses coming back into and staying in the service. We have to redouble our efforts, but I am convinced that we shall achieve the 20,000 extra nurses we require in accordance with the targets set in the NHS plan.
Lord Acton: My Lords, can my noble friend give an indication of how many nurses have been attracted back by this campaign?
Lord Hunt of Kings Heath: My Lords, as I said, we have 10,000 more nurses working in the health service now as compared with two years ago. In relation to the specific campaigns, 3,000 nurses returned last year; nearly 2,500 have returned since March; and another 2,200 nurses are preparing to return to the health service. We are running another campaign in certain
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areas of the country this autumn; we shall run further campaigns in the future. We are very anxious that former nurses will consider the NHS as a place in which to work again in the future.
Baroness Whitaker: My Lords—
Noble Lords: Next Question!
Baroness Whitaker: My Lords, does my noble friend agree—
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, we have reached 16 minutes. I hope that my noble friend will understand if we move on.

Inter-Governmental Conference, Nice
2.52 p.m.
Lord Renton of Mount Harry Lord Renton of Mount Harry asked Her Majesty's Government:
Whether they are considering accepting changes in majority voting and the number of European Union Commissioners at the forthcoming Inter-Governmental Conference in Nice.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, the Government have made clear on a number of occasions that we are prepared to look pragmatically at extending the areas subject to qualified majority voting where this would benefit Britain, while ruling it out for areas of key national interest. As at Amsterdam, we believe that in the interests of a more efficient Commission the larger member states should be prepared to give up their second Commissioner provided that a satisfactory agreement is achieved on the re-weighting of votes in the Council. We have made clear that there must be substantial re-weighting in Britain's favour if we are to give up one of our Commissioners.
Lord Renton of Mount Harry: My Lords, perhaps I may first welcome back the noble Baroness. Her friends on all sides of the House are very pleased to see her back on the Front Bench.
Noble Lords: Hear, hear!
Lord Renton of Mount Harry: My Lords, is not this an issue on which the Government will have to come rather more off the fence, and fairly quickly? Clearly the question of the extension of qualified majority voting is highly emotive. Does the Minister agree that, arguably, it could be the fault line that divides those who, in the famous words of the treaties, want an ever closer Union from those who want a more effective Union but do not want it to be any closer? Will there

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not be an essential moment at Nice when this division may start to appear and the Government will have to be very clear on which side they will come down?
Baroness Scotland of Asthal: My Lords, perhaps I may first thank the noble Lord for his kind compliments on my return, and all noble Lords who have generously asked after my health. I am very glad to be back.
As to the noble Lord's supplementary question, the Government have not been on the fence. We have taken a balanced and realistic view of what is in the best interests of this country. The noble Lord will know that the majority of decisions in Europe already are taken by the use of qualified majority voting. We have been clear that where qualified majority voting will inure to the benefit of Britain, we will contemplate change. Where it will not, we will not. That has been our position for some time. It is a sound position and one which we propose to continue.
Lord Harrison: My Lords, does my noble friend agree that by the judicious extension of QMV we can make the single European market more open to British business? This will provide more opportunities for British firms and will translate into prosperity and jobs.
Baroness Scotland of Asthal: My Lords, I agree with my noble friend that judicious extension of QMV may inure to our benefit, as I said to the noble Lord, Lord Renton. We shall be vigilant to ensure that it is only on occasions when it will inure to our benefit that we will give it consideration.
Baroness Williams of Crosby: My Lords, perhaps we on these Benches may also welcome the Minister back to her brilliant defence of her wicket and say how pleased we are to see her.
Is it not correct that some extension of qualified majority voting and some reduction in the number of Commissioners is crucial to the enlargement of the Union, a goal shared by many of us on all sides of the House? Can she say whether, with the extension of qualified majority voting, the Government would support, as a broad general rule, co-decision making by the European Parliament in order to strengthen the democratic accountability which is so crucial to the success of the Union in future?
Baroness Scotland of Asthal: My Lords, I join wholeheartedly with the noble Baroness in saying that the Government are committed to the enlargement of the European Union. We have been at the forefront of that, and quite rightly too. So far as concerns qualified majority voting, I repeat what I said earlier. That must remain the case. The issue of co-decision making is being looked at by a number of parties and we have said that we shall consider the matter. But the noble Baroness perhaps pushes me to go further than the Government are minded to go at the moment.
Viscount Cranborne: My Lords, can the Minister confirm that any treaty signed at Nice will require
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ratification by both Houses of Parliament? If that is so, could she speculate as to what rights Parliament would have were it minded to reject ratification? Would that be within its powers?
Baroness Scotland of Asthal: My Lords, I cannot answer the noble Viscount's question directly. The noble Viscount will know that at the conference the decision will be based on what each country decides. That will be the final determinator of the position. Scrutiny is certainly possible under our procedure. Whether that would enable the decision to be overturned is quite another matter. I shall be happy to write to the noble Lord with a fuller response after I have had an opportunity to give the matter mature consideration.
Lord Barnett: My Lords, whatever the powers and however emotive the issue, noble Lords on all sides of the House who want to see enlargement of the European Union must surely recognise that it would be absurd not to consider the issue of the number of Commissioners and other matters relating to qualified majority voting. Can my noble friend avoid apologising for the Government doing just that?
Baroness Scotland of Asthal: My Lords, I hope I have not apologised as my noble friend indicated. I make it plain that there are areas where a move to qualified majority voting would be advantageous to the United Kingdom. Indeed, my right honourable friend the Prime Minister made this clear at Biarritz. One such area concerns the rules of procedure for the European Court, where the United Kingdom have pushed for QMV to improve the court's efficiency and to speed up access to justice. Other areas concern aspects of transport, industrial policy, appointments and financial regulations. So there are areas where we would benefit from change. The Government are determined that Britain should enjoy that benefit wherever possible.
Lord Howell of Guildford: My Lords, while the number of Commissioners is obviously important, does the noble Baroness agree that an even more important issue is the curbing of the expansionary tendencies of the Commission, its desire to involve itself in inter-governmental areas and its enormously excessive workload? The Prime Minister touched on this in his Warsaw speech, but what precise proposals will the Government take to Nice in order to meet this central issue in the name of democracy in the European Union.
Baroness Scotland of Asthal: My Lords, we have made it clear that the real issues will be dealt with by the Council and not the Commission. I know that many noble Lords have expressed concern about the ambit of the Commission's work. We have continued to examine these issues but, clearly, the Commission's role is different, and separate, from that of the Council. Although there seems to be confusion in the

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minds of others, we need to be clear that the power base remains with the Council, not with the Commission.

Mandatory Life Prisoners
3 p.m.
The Earl of Longford The Earl of Longford asked Her Majesty's Government:
Whether they have any plans to remove decisions about the release of all mandatory life prisoners from the Home Secretary and transfer them to an independent body.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, the Government have no plans to change the arrangements for deciding when mandatory life sentence prisoners should be released from prison. The Home Secretary takes that decision on the recommendation of the Parole Board.
The Earl of Longford: My Lords, I have so much respect for the Minister that I am sure that he cannot be happy with that feeble reply. Is not the trouble with the Home Secretary deciding these matters that he has a duty to take account of public opinion in the widest sense, including that of the tabloid press, which may be cruel and unjust to prisoners? Secondly, is the Minister aware that leading Law Lords have expressed an opinion that is contrary to his?
Lord Bassam of Brighton: My Lords, the Law Lords have been expressing that opinion for a very long time. The Home Secretary has made his position perfectly plain. We have no plans to change the current arrangements, with which we are entirely happy. As to the influence of the tabloid press, I cannot believe that a Labour Home Secretary would be in any way, shape or form influenced by the tabloid press. He will continue to form a balanced view, as he always has done in these matters.
Lord Ackner: My Lords, is the Minister aware of the Second Report of the Home Affairs Select Committee, published on 15th May 1996 entitled, Murder: The Mandatory Life Sentence? At paragraph 14 of the report, the committee recommended that the responsibility for setting the tariff and for taking decisions on release should be removed from the Home Secretary and should go to the judges, with the Court of Appeal as the final arbiter. Why does the Home Secretary behave like a drowning man clinging to insubstantial wreckage?
Lord Bassam of Brighton: My Lords, the last thing that one could accuse the Home Secretary of doing is clinging to wreckage like a drowning man. That is not at all his demeanour. I defer to the noble and learned
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Lord's knowledge of the report of the Home Affairs Select Committee. I am aware of the report; but the Government take a different view.
Lord Cope of Berkeley: My Lords, if the courts were to decide that the present law was incompatible with the human rights convention, as the noble and learned Lord, Lord Woolf, recently suggested is likely, will the Government stick to their opinion?
Lord Bassam of Brighton: My Lords, the Government, including the Home Secretary, take the view that, in terms of any action in the event of a declaration of incompatibility, it will be for government to propose and for Parliament to dispose. The matter will rest with the Government.
Lord Goodhart: My Lords, does the Minister agree that the simplest way to get rid of this problem is to abolish the mandatory life sentence? Is it not the case that murder ranges from sadistic serial killings at one end of the scale to mercy killings at the other? Would it not be appropriate for judges to be given the same kind of sentencing discretion over murder as they have over all other crimes?
Lord Bassam of Brighton: My Lords, the noble Lord touches on an important issue. It must be remembered that, in practice, the mandatory life sentence is highly flexible. The noble Lord's question suggested that flexibility is required. The judiciary has the opportunity to take cognizance of the facts and the circumstances of, for example, mercy killings at one end of the scale and terrorist offences at the other. We believe that the flexibility is there, and we have no plans to change the mandatory life sentence.
Lord Avebury: My Lords, if a declaration of incompatibility with the Human Rights Act were to be issued by the Law Lords, is the Minister saying that the Home Secretary might nevertheless disregard that finding and continue on the present path?
Lord Bassam of Brighton: My Lords, it will be a decision for government. Our view is that the current arrangements are satisfactory and we intend to stick by them.
Earl Ferrers: My Lords, does the Minister agree that, in granting the release of those who have received a mandatory life sentence, the Home Secretary has a responsibility to consider the public benefit and the effect that their release will have? Does he further agree that such a requirement is not necessarily present if the Law Lords have to do that, because their responsibility is towards the person concerned, and not towards the public?
Lord Bassam of Brighton: My Lords, the Home Secretary must take account of a broad range of views. The views of the public are important, as are those of the victims of crime. We must take careful account of

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both. That is one of the matters that has driven public policy in recent years, particularly under this Government.

Countryside and Rights of Way Bill
3.6 p.m.
Report received.
Clause 1 [Principal definitions for Part I]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 1:
Page 1, line 12, at end insert ("and is at least 2 hectares in size").
The noble Earl said: My Lords, I begin by thanking the Government for the amendments that they have tabled. This measure would have been almost impossible to administer on the ground, and their amendments will make it slightly easier to administer. I hope that the Government will continue to show flexibility during the Report stage, so that we can end up with a Bill that is sensible and workable. That is what all sides of the House want.
In Amendment No 1, we return to a theme that was discussed in Committee; namely, the question of the minimum size of a piece of land to be designated by the countryside agencies. In the Bill as presently drafted, there is flexibility for the Countryside Agency or an appropriate body to designate various parcels of land. However, I question whether that is cost-effective and whether there would be conformity of approach throughout the country.
If there is flexibility in that approach—which I admit has certain merits—it means that the appropriate authority will have to spend a considerable amount of time investigating every single bit of land, however small, in order to decide whether it is suitable for inclusion. The purpose of my amendment is to save time and money by imposing a minimum of two hectares.
The amendment I proposed in Committee sought a minimum of five hectares, and my noble friend on the Front Bench tabled an amendment in favour of 10 hectares. I listened to what the noble Lord, Lord Whitty, had to say on the matter. His argument that five or 10 hectares was too big had merit. I do not think that two hectares is too big. It would make the job of the appropriate authority very much easier if it could apply such a minimum. That would save a great deal of time and expense and would provide consistency throughout England and Wales. I beg to move.
Baroness Byford: My Lords, I support my noble friend's amendment. Clearly, the Government considered our original amendments. I remember "football pitches" being referred to in Committee and it was said that the original size proposed in the amendments was too big. I urge the Minister to consider the amendment that is now before the House.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, the noble Lord seems to regard this as a bit of a negotiating session; indeed, we have gone down from 10 to 5 and now to 2. I suppose that I should be grateful for that. However, there is a principle involved here. The Government have recognised some of the arguments put forward from various quarters of this House. We have, in total, tabled about 40 amendments, most of which give some further leeway or greater flexibility to landowners. Therefore, most of them reflect the degree to which we have been prepared to listen to arguments in this House.
The amendment now before us, and many that follow, seeks to take those restrictions further. We have provided a flexibility for the countryside bodies to take them further in appropriate circumstances. There seem to be two problems. The first is that there is a mood in some quarters of this House that the restrictions should be greater than the Government have accepted. We believe that we now have a sensible range of amendments, which take account of earlier arguments. However—I say this not necessarily in relation solely to this amendment—we believe that we have gone far enough down that road. Minor alterations may be necessary here and there which we will accept in terms of today's arguments, but, in general, we believe that what we now have is a sensible balance.
We have also provided for a means to adjust that balance in response to factors that become apparent in the administration, in the mapping, or in the experience of operating access. We have given a discretion to the countryside bodies, under Clause 4(5) of the Bill, to decide not to map small areas of open country if it appears impractical or not sensible. That provides a practical and sensible tool, but does not mean the exclusion of all small areas of open countryside, many of which are quite attractive and ought to be open to the general public. That provision will allow bodies to exclude parcels of land that would involve wholly disproportionate effort, wholly disproportionate costs to survey or provide wholly insignificant benefit to the potential users.
In implementing the legislation, the countryside bodies may exclude land greater or less than two hectares. It is a matter for them to resolve in the light of the mapping process and in the light of experience. For example, they may decide to apply different thresholds to some types of land. We do not see any reason to interfere with that discretion. Part of the problem seems to be that some noble Lords, especially from the party opposite, do not trust the Countryside Agency to exercise this discretion fairly and equitably. If we cannot trust our public bodies—there are great public servants who operate within the Countryside Agency—we shall have difficulty in making this Bill work in general. We should not make the situation worse for the agency by imposing on it arbitrary limitations. We should leave such matters to its discretion. I hope that noble Lords, both in respect of this amendment and others, will overcome their paranoia about the Countryside Agency and recognise

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that that is the way in which flexibility operates under our system of government in this area, as well as in others.
The amendment would not excuse the countryside bodies from the duty to consider including such land; it would simply introduce an arbitrary cut-off point. That seems to me to represent an inhibition as regards achieving equity and common sense in their task, rather than making it easier. The amendment also fails to recognise that open country comes in many shapes and sizes. A small area of wasteland formed by the angle of two roads might genuinely provide a useful recreational area in the vicinity of a village. But a similar sized area would be less significant if it were on the edge of, say, Dartmoor. We are certainly not prepared to assume that it is not worth granting a right of access to all land of a size of less than two hectares. Indeed, it is much better to leave such discretion to the countryside bodies. I hope, therefore, that the noble Earl will not pursue this amendment, and others, that would fetter such discretion and make the job of mapping that much more difficult.
3.15 p.m.
The Earl of Caithness: My Lords, I am grateful to the Minister. However, I cannot follow his final comment; namely, that it would make the job of mapping more difficult if we excluded small areas. I believe that it would make that task that much easier. The whole point of my amendment is that if you say that no land below two hectares is to be mapped, it will make the whole process for the countryside bodies so much simpler. Indeed, everyone would be clear on the position—the countryside bodies and the owners and occupiers of land. But if you have a fully flexible system, which the noble Lord advocates, that will lead to wholly disproportionate costs in many areas and to inconsistencies throughout the country.
I believe that the noble Lord's arguments are wrong. It is not a question of mistrusting the countryside bodies. At the, end of the day, it is a question of pure practicality. That is what I am trying to achieve. It should be clear for the countryside bodies and for those occupying the land that small areas need not be mapped. That would be clear, cost effective and surely must be right. However, I realise that the Government are utterly entrenched on the matter. I believe them to be wrong, but only time will prove who is right. I hope that the Minister will be able to quantify in due course the extra costs to the countryside bodies of this work and that he will account to Parliament for it. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 1A:
Page 2, line 8, after ("Agency") insert ("which shall carry out its obligations under this Act through its employees unless contracting out to third parties is agreed by the access authority in consultation with the local access forum").
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 1B. I should like to welcome the fact that we have arrived
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at the Report stage of this Bill and to say how pleased we are on these Benches with the progress made in Committee, especially the number of amendments that the Government have brought forward.
However, during our discussions in Committee, the words "discretion" and "sensitivity" were mentioned many times in relation to the Countryside Agency. Indeed, I believe that the Minister mentioned those words just a short while ago. The way in which the agency exercises such discretion is obviously crucial. These amendments were prompted by concerns as to exactly how that discretion will operate. It is clear that the Countryside Agency will not be able to begin to implement all of the functions that it will now have to undertake as a result of the Bill. It will obviously have to contract out a large number of the tasks that will arise as a result of this legislation, as is the case with the mapping.
In practice, contractual arrangements depend very much on how successful the original specification is in drawing up the exact responsibilities of the private enterprise as regards the people with whom it will be dealing. Given the fact that the agency will have a relationship between access authorities, local access forums and the agency—with the contractor somewhere in the middle—we need to hear from the Minister exactly what is in the Government's mind in terms of giving guidance to the agency about contracting out these very sensitive areas of work. Indeed, they would include not only the mapping but also appeals on behalf of landowners about closures, which was something that exercised all our minds in Committee; for example, when it would be reasonable to grant discretion to landowners to close their land beyond the 28 days given in the Bill. However, I am sure that we shall debate that issue again at equal length.
I should like to know what sort of guidance the Government intend to give the agency on such matters. In the event of the contract not being a happy arrangement in a certain area, can the Minister say what process could be followed in such circumstances? For example, will there be a right of appeal to the Countryside Agency because the contractor is not carrying out its duty in the way that people had hoped? Alternatively, will the appeal be to the Secretary of State? At present, I am quite unclear as to how that relationship would work in these extremely sensitive areas. I beg to move.
The Chairman of Committees (Lord Boston of Faversham): My Lords, although the meaning of this amendment, as printed, is no doubt clear, I must point out to your Lordships that there are two printing mistakes in it. The quotation marks should appear before the words "covered" and "of", not before the words "leave" and "insert".
Baroness Carnegy of Lour: My Lords, this seems to me a sensible amendment. I believe that probably most Members of your Lordships' House have become increasingly anxious that the agency will have an enormous amount to do, and some of that in a short

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space of time. It is important that the agency should be able to contract out and that Parliament should know the conditions under which that is done and what happens if the people who do the contracting out do not properly fulfil their responsibilities. I am sure that noble Lords will listen to the Minister's response with great interest.
The Chairman of Committees: My Lords, I apologise to your Lordships; it is I who have made a mistake on this occasion. I referred to two errors which we shall no doubt come to in due course. Amendment No. 1A, as proposed by the noble Baroness, Lady Miller of Chilthorne Domer, states:
"Page 2, line 8, after ('Agency') insert ('which shall carry out its duties under this Act through its employees unless contracting out to third parties is agreed by the access authority in consultation with the local access forum')".
I am sorry for having detained your Lordships because of my error.
Lord Whitty: My Lords, these amendments would require the countryside bodies to consult with local access forums before appointing a contractor. That is a significant inhibition on the Countryside Agency in carrying out this work. As we shall discover when we discuss the relevant amendments, local access forums are regarded as an important factor in assessing how we establish and manage access. However, we do not believe that they are appropriate bodies to consult in the context we are discussing.
The countryside bodies are required to produce maps of all registered common land and open country. They will be required by regulations to consult widely on draft maps, consider representations, then produce provisional maps for confirmation or amendment following the hearing of any appeals by the Secretary of State or the National Assembly for Wales.
That is a considerable task. We cannot expect the countryside bodies to use directly employed staff in all contexts. The in-house staff will not have all of the technical expertise that is required. When specialist staff can be contracted to carry out certain work it would not be sensible for the countryside bodies to employ specialists for a limited period and then dispense with them. The bodies involved have already taken steps to identify, and where necessary contract, organisations and individuals with the right skills to do this work. As we discussed earlier, they are working closely with the Ordnance Survey to ensure high technical standards. In mapping and other areas they will need expertise which complements their in-house expertise. However, oversight and responsibility for all this work will rest with the countryside bodies. Their staff will set the parameters, oversee the operation of the contracts and will have a direct and vital role in discussions with the interested parties during the process and afterwards. They take extremely seriously the prospect of carrying out their functions. They are determined to carry out that work in a professional and transparent manner.
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The amendments imply that we would employ particular bodies for particular mapping purposes. However, it is more likely that we would employ under contract particular organisations or personnel for their general expertise. It would therefore be difficult to engage a significant number of local access forums in the contractual arrangements, as the amendments would require, because they would be organised on a national or regional basis rather than on an area or county basis. There may be occasions where that is not the case but in those situations the countryside bodies' own staff would engage in full consultation with the relevant local access forums.
As regards guidance to the Countryside Agency, I think I have indicated that it will have tight overall management of this work. We shall not give specific guidance to the Countryside Agency on contracting out. However, the provisions in regulations—I refer, in particular, to Clause 11 which concerns regulations relating to maps—will set out in detail the requirements for consultation and appeal, which the noble Baroness was particularly worried about, and will allow us to concentrate on achieving the right outcomes without interfering in the way in which the Countryside Agency mobilises the inputs, whether in terms of direct staff or separate contracted companies or individuals. Therefore the fact that that body will be in charge of the procedure will safeguard the appeals process. What we are really talking about here is deploying expertise.
As I say, the Countryside Agency will be in charge of the process. It will consult with local interest groups and local access forums. Most of the expertise will probably consist of contracted specialists. I believe that the amendments are inappropriate. I hope that the noble Baroness will not press them.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his full reply. He mentioned the spirit of the approach that the Government will adopt towards the agency. That is helpful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 1 B not moved.]
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 2:
Page 2, line 15, at end insert ("is open and which").
The noble Viscount said: My Lords, this is a drafting amendment but it raises a point of considerable importance as it affects the whole question of what constitutes access land. I hasten to assure the Minister that in raising this point I am in no way infected with paranoia.
The first aim of the Bill, as stated in Clause 1(1)(a), is to give access to "open country". The question of what constitutes open country is conclusively resolved and defined in Clause 1(2) which states that ""open country' means"—that is therefore exclusive—
"land which—
appears to the appropriate countryside body to consist wholly or predominantly of mountain, moor, heath or down".

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For the purposes of the point I am making I shall concentrate on downs. By that definition, any land which appears to consist mainly of down is open country. Thus, if one has an area of land which is undoubtedly mainly down, it is within the definition of open country and therefore becomes access land even if it is not open at all. That point became apparent on the first day of Committee in this Chamber when there was discussion of a technical nature as to what constituted a down. The noble Lord, Lord Whitty, suggested that that probably included parts of the Cotswolds, the Yorkshire Wolds and other such places. It then became apparent to me that if those areas of countryside are considered downs, they are within the primary definition of open country, whether or not they are open. No one, not even the Countryside Commission, can say, "They are down but they are not open and therefore we shall not treat them as open country".
The definition states that all land which is down is open country and therefore under Clause 4(1) it must he mapped, unless, of course, it is of a de minimis quantity. That cannot be what was intended. I give an analogy. Let us suppose that an Act protects ancient dwellings but states that an ancient dwelling means any building constructed before 1600. Then any such building is included, whether or not it is a dwelling. One has precisely the same situation here in that any down is included, whether or not it is open. Therefore I wish the definition to state that open country constitutes land which is open and which appears to be wholly or predominantly heath or down.
I confidently hope that the Minister will gratefully accept my freely-given advice and improvement to the Bill. I beg to move.
3.30 p.m.
Lord Glentoran: My Lords, I support the amendment. It is the first time that I have heard the noble Viscount's arguments. They sound eminently sensible and help with the description over which we struggled for such a long time in Committee.
Baroness Hamwee: My Lords, can the Minister confirm that in construing the definition of "open country", which appears to the appropriate body to consist of the various types of land described, that body must apply the usual Wednesbury principle? Bearing that in mind, the definition of open country is used to define access land and has to be read alongside the schedule of exceptions from open land. One has to marry the definitions together. Nevertheless, the point is already covered.
Lord Whitty: My Lords, the noble Viscount refers to this as a drafting amendment. Taken literally, it is closer to a wrecking amendment. I am not sure that that is the noble Viscount's intention but in practice that would be the effect. It would mean that enclosed land, typically fields, could not be mapped as open country for the purposes of the Bill. As the noble Viscount hinted, the effect would be to exclude most downland and significant areas of moor and heath from the definition of access land.
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The term "open country" is defined effectively as mountain, moor, heath and down. In the Government's consultation paper published in February 1998, we said that,
"open does not necessarily mean 'unenclosed': some of the land may well be fenced, for example, to prevent grazing animals straying onto roads, or it may include walls to separate areas of grazing".
Indeed, much of our currently accessible open land is covered in drystone walls and can be regarded as enclosed land.
As the noble Baroness, Lady Hamwee, said, that does not mean that everything on downland would be treated as open country. The restrictions have to be read together with what appears to be mountain, moor, heath and down. Therefore, there would be substantial exceptions and restrictions on the downlands referred to, principally in relation to arable land. Enclosed arable land would be automatically excluded.
We thought that we had made clear that there is nothing in the Bill which restricts landowners from doing what they like with their land. Therefore, if they use the land for arable farming, even though otherwise it might fall within the definition of downland, it is excluded. If they wish to erect fences or walls around the field, they are entitled to do so but in certain circumstances that will still be open country. Providing a barrier, a wall, which may be there already or erected, will not exclude it from being access land.
Very little of the downland commons which range across the tops of the chalk ridges in south-east England remain common land, having succumbed to enclosure in the 18th and 19th centuries. Much, if not all, has been enclosed to permit the management of stock. Such enclosure need not affect the characteristics of downland, typified by rolling hills, steep slopes, dry valleys and short rich turf. Those areas will be identified as downland. But if they are used for purposes which lead to an exclusion or restriction, they will not be treated as access land.
It is also not axiomatic that moor and heath, for example, are unenclosed. Moorland has been enclosed or allotted by landowners at various times in the past 200 years. The changing economics of agriculture, and the poor productivity of the soil, has caused some of that land to resume the characteristics of unimproved moorland.
Therefore we do not accept the principle of the amendment. In all the categories of mountain, moor, heath and down there may be enclosed land which it is appropriate to treat as access land. Yes, countryside bodies will need to act reasonably when they apply their discretion. They will need to review the definitions and to have careful regard to the exclusions and restrictions in the other clauses of the Bill. But they will not be expected to exclude excepted land from maps unless they believe that to be not predominantly open country. Therefore they will identify mountain, moor, heath and down and then consider whether that land is being used for purposes which are inappropriate for treatment as access land and covered by the exceptions in the Bill.

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The implication of the amendment is that all enclosed land should be excluded from the definition. That is a substantial undermining of the principle of the Bill and would cause grave difficulties in delivering the main purpose of the Bill
Viscount Bledisloe: My Lords, I am grateful to the Minister for that full reply. I am sure that he knows me too well even to contemplate the idea that I might seek to wreck his Bill. For the reasons he gives, I accept that this is not the proper solution. However, I suggest that the debate in Committee on what is or is not downland will need resolving. I hope that he will give that point further thought and return to it at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 3:
Page 2, line 17, after ("down") insert ("(but excluding land habitually used for the making of hay, silage or haylage)").
The noble Earl said: My Lords, in moving the amendment, I speak also to Amendments Nos. 6 and 13.
On many occasions in another place and in this House the Government have said often that they do not wish to include in the definition, land that is used for the making of hay and silage: but that point is not clear in the Bill. The amendment seeks to clarify the position so that what has been said by Ministers is on the face of the Bill.
I have sought to be helpful to the Government and have given them an alternative in Amendments Nos. 6 and 13. The amendment provides that,
"land habitually used for the making of hay, silage or haylage",
would be listed in Schedule 1 as excepted land. I have used the word "habitually" because it is used in government Amendment No. 17 on training gallops. Amendment No. 13 makes clear that this excepted land would not be available for access for the period 1st March to 30th September when hay and silage is being made, but would be available from the period October to February.
I hope that the Government and I are in tune. It is an aim we both wish to achieve. I have given the Government two alternatives. I beg to move.
Earl Peel: My Lords, Amendment No. 7 is in this group. With the leave of the House, I should like to speak to Amendment No. 8 separately. As the Bill stands, excepted land for access includes,
"Land on which the soil is being, or has at any time within the previous twelve months been, disturbed by any ploughing or drilling undertaken for the purposes of planting or sowing crops or trees".
In other words, the definition specifically covers cultivated land.
Like my noble friend Lord Caithness, I believe that to be inadequate, as it may not cover improved or semi-improved grassland that produces hay, silage or haylage—a new word. That is clearly an essential part of farmers' livelihoods.
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I am sure that it will not be the express intention of the access authorities to include such land within access provisions. I take issue with the Minister's suggestion that the Conservatives have an inherent mistrust of the Countryside Agency. That was a little blunt. As my noble friend has already said, we are trying to define the areas in question in a way that will not lead to confusion.
In Committee, we had a considerable debate on the definition of "open country" under Clause 1, which covers land that,
"appears to the appropriate countryside body to consist wholly or predominantly of mountain, moor, heath or down".
Many of us felt that that description was too wide and could lead to difficulties and appeals during the mapping process. It is important to try to clarify as best we can the various land types. I agree that it is not always possible, but in this case it is possible and desirable. It would be inappropriate to allow the land that I am talking about to be included in the access provisions. Getting it right now will reduce the chances of confusion and appeals at the mapping stage. That alone would be very helpful.
I accept that Amendment No. 7 is not dissimilar to Amendment No. 3, tabled by my noble friend Lord Caithness. However, the definition in my amendment has been adopted previously in legislation, appearing in Sections 42 and 52 of the Wildlife and Countryside Act 1981, so it has a sound precedent.
Furthermore, on Report in another place, at column 809, Mr Meacher, the Minister there, expressed sympathy with the idea that such land should be excepted. If the Minister in another place feels that it should be excepted, I expect the Minister in this House to adhere to that.
The amendment is straightforward and would make it clear that any land that was not used for any reason other than rough grazing was excepted land. I hope that the Minister will agree.
3.45 p.m.
Lord Monro of Langholm: My Lords, I apologise to the House for not having been present in Committee. I would have supported the noble Earls, Lord Caithness and Lord Peel, at the time.
From a purely practical farming point of view, the Government are missing an important trick. They seem to forget that grassland or meadow land, particularly on hill farms, is often a link between the nearest access road and the open hill. During the summer growing months of June, July and August, it is very important that such land should not be disturbed if the farmer intends to take a crop of hay or silage from it.
The Government have said that cultivated land will be excepted, but hill grassland is not normally in any form of rotation. It would normally be broken perhaps only once every 10 years, or perhaps not at all if constant improvement was possible with lime and fertiliser. In those circumstances, it could not possibly come under the regular cultivation exception. In any

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event, as most hill farmers know, it takes two or three years to establish a good sward from a directly re-seeded meadow before it is fit for hay or silage.
Another important reason for not disturbing the fields in the summer is to protect certain ground-nesting birds. When I was the Minister for Rural Affairs in Scotland, I visited SSSIs in the Outer Hebrides—that may be a long way from England, but the issues are the same—where the farmers received management agreements provided that they did not cut the hay until 1st August. That enabled corncrakes and other ground-nesting birds such as curlews to nest in the hay. The birds would be fledged by the end of July or the beginning of August. There was therefore a double reason why the ground should not be disturbed by people using it for access to open hills.
There are good reasons to support the amendments. Winter keep is essential for hill farms. If it can be taken only from a few meadows or grassland fields around the farm that are likely to be used by the general public for access to open hills, those fields should be kept clear of footsloggers during the hay period, from the end of May until well into August. That would enable the hay to grow to best advantage and would avoid disturbance of ground-nesting birds, which is often a problem on such land. We should give the amendments a fair wind, even if we have to come back to the issue at Third Reading.
Baroness Carnegy of Lour: My Lords, the amendments are important. To put the issue in a slightly different way, the House should realise that grass is an important crop. In many parts of the country, particularly in Wales, it is increasingly important, because the low price of cereals makes it worth growing grass wherever it grows best. It is grown not just permanently as rough grazing, but for intensive grazing. Sometimes it is even divided into compartments so that stock can feed on one part and then on another, or for hay, silage or haylage, as the amendments specify.
It would be disastrous to have people walking across such grass. It is important for people to realise that it has to be treated in the same way as a field of grain or root crops.
I do not know whether we have come up with the right definition. I suspect that my noble friend Lord Peel has come up with the best solution, because his amendment specifies everything that is not rough grazing. It embraces all the different ways that grass may be grown in potential access areas and does not limit it only to hay, silage and haylage. The Minister may have a view on that.
I hope that this matter is being considered because it is a problem that may lead to the type of confrontation in the countryside that we want to avoid. We need clarity in relation to the definitions.
Lord Northbourne: My Lords, I support what the noble Baroness, Lady Carnegy, has just said. In one way or another for 40 years I have had connections with the Redesdale Experimental Husbandry Farm.
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I am most concerned to realise from this debate that the Government may be considering the possibility of making subject to access what is called "in-bye land"; at least, it is called that at Redesdale and in Northumberland.
The reason for my anxiety concerns not only the absolute necessity of having a hay supply, but also lambing. Over the past 30 or 40 years the practice of lambing on hills has been less and less popular. Sheep are now brought into in-bye fields for lambing or into lambing sheds. Building lambing sheds represents an extremely expensive capital project which many hill farmers would not be able to undertake. It is absolutely essential that fields should he available for lambing and that they should be undisturbed. I believe that this is another important argument for accepting the amendment tabled by the noble Earl, Lord Peel, rather than the others.
Lord Hardy of Wath: My Lords, without entering into an argument about the merits of a particular amendment, perhaps I may express sympathy with the approach. It is essential that we encourage farmers to grow rather than buy in feed. The BSE tragedy provides evidence of that desirability. If they are to be encouraged to grow feed, I believe that consideration must be given to this approach. It would, of course, be helpful to ground-nesting birds as well. I hope that my noble friend will be able to give careful thought to this matter.
Baroness Miller of Chilthorne Domer: My Lords, we on these Benches are concerned that the land used for growing grass crops does not have a closer definition. Indeed, on behalf of the Government in Committee the noble Lord, Lord McIntosh, said that he recognised the concern of noble Lords. He acknowledged that access to fields could cause damage and went on to say that,
"farmers will have every opportunity to see that it"—
that is, the land used for grass crops—
"is excluded from the maps".—[Official Report, 27/9/00; col 919.]
Those of us who are concerned about smaller upland farmers believe that at the moment the boot seems to be on the wrong foot. Farmers who need land to grow grass crops for their animals should be able to expect that land to be excluded. Like the noble Baroness, Lady Carnegy of Lour, I am not sure that any of the amendments in this group quite meet what we are seeking to achieve. I urge the Government to give one last thought to this matter and to return with their own amendment at the next stage.
Viscount Brookeborough: My Lords, first, I apologise for not having been here for the earlier stages of the Bill. I support these amendments. At my home, groups of people ask permission to walk across our land and on many occasions we permit them to do so. However, people must be kept away from standing crops of hay which are to be cut for silage. Many people wonder what happens to the crops if they are walked on. Quite simply, they end up on the ground and the machinery cannot pick them up.

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Although normally seen in grain, an indication of the damage that is done can be seen when flying into London airport in the summer over areas where standing grain grows in fields close to houses. It is possible to see from the air the amount of damage that is caused, even in areas where people do not necessarily have a right of access. One can see the damage caused to great swathes of crops which have been tracked through, let alone the damage created by crop circles. If one flies over the affected area a few weeks later after the crops have been cut, it is possible to see areas which have been left uncut purely because people have wandered through them. Therefore, I support the amendments.
Lord Jopling: My Lords, my mind was working on exactly the same point as that made by the noble Lord, Lord Northbourne, when he talked about the Redesdale Farm in Northumberland, with which I am familiar. I remember visiting that particular experimental farm when I was a Minister in MAFF a good many years ago.
I remember talking to people during that visit about hill farming in the north of England. It was put to me in strong terms that one of the greatest inhibitions for a hill farmer is his capacity to over-winter his sheep. I was told that there was always plenty of keep in the summer on the hill and moor but that it was difficult to conserve enough material, whether hay, silage or whatever, for keeping the stock over winter.
If the Minister wants an example of that I invite him to ask for advice about the demand from hill farmers for their sheep to go to the lowlands during the winter and to eat sugar beet tops. After the sugar beet has been removed, the tops keep sheep effectively for considerable lengths of time during the depths of winter. Many farmers cannot keep enough sheep to provide them with a reasonable livelihood during the winter because of the difficulty of providing enough winter keep for them from their farms. Therefore, I believe that these amendments are exceptionally important and I hope that the Government will take them seriously.
I want to make another point which I believe has been half made already. However, I should like to express it a little more fully. One thinks of lush meadows in the lowlands which are about to be cut for hay or silage, but on the uplands the crops are very much thinner. Often, people who visit the countryside do not know as much about the ways of the countryside as many of us would wish. I believe that in many upland areas a rambler could mistake a hay or silage crop for grazing land. It is possible that he would not realise that grass was being grown for conservation. Therefore, unless farmers can fall back on an Act of Parliament which states that land is excepted from the right to roam, it will be extremely difficult for them to keep the public off land where grass is being grown for conservation.
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I plead with the Minister to take on board the points that have been made on all sides of the House. I hope that he will either accept the amendments or return at Third Reading with other amendments to deal with this practical problem for upland farmers.
Lord Rotherwick: My Lords, I rise to speak briefly as a landowner and manager who no longer makes silage, hay or haylage. I agree entirely with what the noble Lord on my right and the noble Viscount, Lord Brookeborough, said. However, a point which no one has yet raised is that of safety. I speak as someone who has grown such crops in the past. They are harvested with fast-moving, sharp-cutting, knived machines. The crops can be three feet high and it is not easy to see if anything is lying in them. Surely it cannot be right to allow people to have access to crops when they are being cut by dangerous machinery.
Baroness Strange: My Lords, I wish to make a tiny point. These fields contain food. They are not places in which to walk; they are growing food for sheep. It would be just the same if people had the right to roam in a restaurant and walk about on the tables all over the dishes.
4 p.m.
Baroness Byford: My Lords, I am not sure how to follow the words of the noble Baroness, Lady Strange. I understand what is meant. It is a graphic example of the problem that we face.
The Minister will be well aware of the feeling around the House this afternoon on the practicalities of the Bill's implications if we do not look at this issue in all seriousness. We refer particularly to the hill farmers who are struggling to survive at the moment. If these additional restrictions are not made, I fear that it will become worse and more difficult for them. I hope that the Minister will consider these matters very seriously.
Lord McIntosh of Haringey: My Lords, we gave assurances in Committee and assurances were given in another place that the criteria adopted by the countryside bodies for the mapping of open country will exclude improved agricultural land from maps of open country. We had said repeatedly that this land will fall outside the criteria which the countryside bodies are adopting for mapping open country. We wrote recently to the noble Baroness, Lady Byford, to explain that the Countryside Agency has already issued a paper for consideration by the National Countryside Access Forum setting out its initial views on the criteria it should adopt in mapping open country. If that paper was not copied to any noble Lords who have taken part in this debate, I should be happy to do that.
The paper focuses on naturally occurring vegetation as an indicator of its status as mountain, moor, heath or down. The proposed criteria exclude land that

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comprises improved or semi-improved pastures, arable land, land used for rotational cropping and set aside.
Viscount Brookeborough: My Lords, I thank the noble Lord for giving way. What is the definition of "improved"? We have land at home that we wanted to plant out with trees. We obtained one level of grant for improved land and one level for unimproved land as defined by the Ministry of Agriculture. For improved land there has to be a certain percentage of certain types of grasses. There is very good unimproved land—by the definition the Ministry gives—which is used for cropping, grass, haylage and silage. Therefore, much of it would fall outside what the Minister just said.
Lord McIntosh of Haringey: My Lords, I had better pursue my argument which has to be seen as a whole rather than intervene in negotiations between the noble Viscount, Lord Brookeborough, and the Northern Ireland Department of Agriculture. Clearly, whatever definitions are used for grant purposes, they are not the same as the definitions that the Countryside Agency will draw up for the purposes of this Act.
The criteria are not complete. They will be developed and refined and subject to consultation. They will include a working methodology as part of the pilot mapping exercise in respect of which a contract will be let later this year.
The Government endorse the selection of criteria that excludes these types of land. We can assure all who have taken part in this debate that the purposes for which these amendments have been tabled will be achieved by the Bill, and plans are being put in place for their implementation.
I deal with the amendments in turn. Amendment No. 3 would exclude from the definition of "open country" land which is habitually—and the noble Earl, Lord Caithness, is right in taking the word "habitually" from Amendment Nos. 14 and 17—used for the making of hay, silage or haylage. It is drafted more narrowly than Amendment No. 58 which is on a similar subject but which is to be taken separately. It deals particularly with grassland capable of producing a commercial crop. The use of the word "habitually" should avoid the unnecessary exclusion of extensive areas of downland from maps of open country. It would still leave considerable doubt about the status of downland from which a hay cut is often taken. Much traditional downland is capable of providing a crop of hay in a good year. We do not believe that the potential for generating a crop of hay on downland makes it inconsistent with rights of access.
There may be a need at times to protect grass from trampling, and that point has been made very effectively this afternoon. I want to give three answers to that. First, it can often be achieved by encouraging the use of paths. Secondly, where restrictions are required, entitled persons will be able to close the land or restrict access using their discretion under Clause 21 which is enhanced by our Amendment No. 117 or, thirdly, to apply to the relevant authority for a
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direction for the purposes of land management. I say that in response to the noble Lord, Lord Monro of Langholm.
Where a hay crop is regularly taken from the land, the relevant authority can make a direction that has effect for the appropriate period in every spring or early summer. I accept that if the Bill were to cover Scotland, the spring might go through to later than early summer.
How would the farmer demonstrate to the satisfaction of the countryside bodies or the Secretary of State his habitual practice of taking a cut of hay from the land? An amendment along these lines would be very difficult to apply in practice.
Amendments Nos. 6 and 13 represent an alternative approach in that they add provisions similar to Amendment No. 3 to the categories of excepted land in Schedule 1. Amendment No. 7 would simply exclude agricultural land rather than rough grazing.
Both the noble Earl, Lord Peel, and the noble Baroness, Lady Carnegy, talked about the need for clarity. I agree with them. The noble Earl, Lord Peel, spoke about the need for clarity in the appeals process. The need for clarity goes further than that. We explained in detail in Committee that it would be unhelpful to introduce into Schedule 1 any exception of land that was not readily identifiable by the public and by farmers. No walker could be expected to identify land that was habitually used for the making of hay, silage or haylage unless he were accompanied by a team of agricultural consultants; nor would a walker be any better informed about whether land was rough grazing.
It is much more sensible that land inappropriate to the right of access is excluded at the mapping stage. The process set out in the Bill, with the assurances that I have given, will achieve this objective.
The noble Earl, Lord Peel, and others referred to the definition used in earlier legislation of exclusion of agricultural land by reason only that it affords rough grazing for livestock. That test has not worked very often. It has rarely, if ever, been necessary to use the test for exactly the reason that applies in this case because under the earlier legislation improved and semi-improved pastures were excluded from agreement land in the first place. In this legislation we have always made it clear that mountain, moor, heath and down are intended only to include agricultural land used for rough grazing. It is in the mapping process that this land will be identified and other agricultural land excluded.
The noble Lords, Lord Northbourne and Lord Jopling, mentioned in-bye land referring in particular to Northumberland. It is unlikely that much in-bye land would be mapped as open country as it is very rarely mountain, moor, heath or down. One must remember that that is the overriding control on what is included in mapping. Some land of this kind has long since ceased to be managed and has resumed characteristics typically of moorland, and surely that should be mapped as open country if it is so.

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The noble Lord, Lord Monro of Langholm, talked about improved and reseeded fields. These lands are unlikely to be mapped as open country as they will not be mountain, moor, heath or down. The question of exception of this land in Schedule 1 does not arise.
I recognise that there is strong feeling around the House. We believe that the Bill as drafted provides the protection sought for hill farmers. But in the light of the strength of feeling which has been expressed, I am certainly willing to explore what more can be done on the face of the Bill to ensure that "open country" can be better defined so as to exclude land regularly used for the making of hay or silage.
If we can conclude a form of words which is satisfactory and which does not exclude large areas of downland which really should be covered by the Bill—and I can give no commitment on that point—then we shall consider whether, under those circumstances, we could table an amendment to that effect at Third Reading.
The Earl of Caithness: My Lords, I am grateful to all noble Lords who have taken part in this wide-ranging but at the same time specific debate because it has focused on a major lacuna within the Bill. There has been support for the idea behind the amendment and the idea of the noble Earl, Lord Peel, from the Labour and Liberal Democrat Benches, from the Cross Benches, and from my own side. For that, I am extremely grateful.
I was very concerned by a number of the Minister's comments. I wish to read them carefully in Hansard. It sounded to me as though the Government were going back on what they had said both in another place and in this House. The Minister's words about land on which hay could be made were, in my view, a distinct retreat from the Government's earlier position. That will be of immense concern to every upland farmer who is following this issue with great anxiety.
The Minister made a rather dismissive remark that definitions are different in Northern Ireland. That was an insult to—
Lord McIntosh of Haringey: My Lords, I did not say that. I said that definitions of improved and semi-improved land used for the purposes of grant might be different. There were no aspersions cast on or praise given to Northern Ireland.
The Earl of Caithness: My Lords, I thank the noble Lord, Lord McIntosh of Haringey, for that clarification. It only goes to prove that more work is to be put on the owners and occupiers. One set of definitions is used for the purposes of grant and a completely different set will be dreamt up by the Government in relation to access. Life will be made more difficult for those in the countryside.
I was concerned about 99 per cent of what the noble Lord said. However, he produced a little pearl to hang on to at the end when he said that he would take away the matter for consideration. It would therefore be
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wrong to test the opinion of the House on this amendment or, indeed, on subsequent Amendments Nos. 6 and 13. I hope that the noble Lord is serious and that he will require his officials to come up with an appropriate amendment. Clearly, what is on the face of the Bill at the moment is totally unsatisfactory and represents a danger to wildlife as well as to the prosperity of the farming community. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 4:
Page 2, leave out lines 19 to 21 and insert—
("(3) In this Part "registered common land" means—

(a) land which is registered as common land under the Commons Registration Act 1965 (in this section referred to as "the 1965 Act") and whose registration under that Act has become final, or

(b) subject to subsection (4), land which fell within paragraph (a) on the day on which this Act is passed or at any time after that day but has subsequently ceased to be registered as common land under the 1965 Act on the register of common land in which it was included being amended by reason of the land having ceased to be common land within the meaning of that Act.

(4) Subsection (3)(b) does not apply where—

(a) the amendment of the register of common land was made in pursuance of an application made before the day on which this Act is passed, or

(b) the land ceased to be common land by reason of the exercise of—

(i) any power of compulsory purchase, of appropriation or of sale which is conferred by an enactment,

(ii) any power so conferred under which land may be made common land within the meaning of the 1965 Act in substitution for other land.").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 150, which is consequential.
Part I provides for a right of access to all common land registered as such under the Commons Registration Act 1965. The amendment will ensure that access to common land under this Bill is preserved where it is deregistered after the Bill is passed. Similar amendments were moved in Committee by the noble Baroness, Lady Miller of Chilthorne Domer. This meets her concerns.
We recognise that those concerns are real, albeit that 85 per cent of common land is likely to fall under one of the other classifications. Clearly, between Royal Assent and the time at which the rights come into effect, we do not wish to see some of the common land being deregistered. The amendment will prevent that leakage. I beg to move.
4.15 p.m.
Baroness Miller of Chilthorne Domer: My Lords, I am grateful to the Government for coming back with this amendment and for taking the opportunity to strengthen the position of commons and, later in the Bill, of village greens. I am glad that those areas have

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not been left unprotected, small though they may be. We believe that they are very important and, as I said, I thank the Government.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 5:
Page 2, line 21, at end insert—
("(3) It shall be the duty of the appropriate countryside body to set out clear definitions of moor, heath and down.").
The noble Earl said: My Lords, your Lordships will have noticed that I moved the same amendment in Committee. I am emboldened to table it again in view of what the Minister said in Committee on 27th September at cols 896 and 897. He said that he would need to consider the anxieties expressed over the previous 31 minutes on the issue. Sadly, that reconsideration, which I hope he undertook, has not taken the form of a government amendment. I am therefore proposing the amendment again.
It is a major defect that there is no instruction on the face of the Bi11 for one body to come forward with a clear definition of "moor, heath and down". As we discussed in Committee, it is absolutely critical that we should know what the definitions are. Those definitions must be arrived at by a central body so that they are national definitions. They should not be drawn up by individual countryside bodies which, first, do not have the expertise to make the definitions and, secondly, will come up with a variety of different definitions.
As I said in Committee, the definitions of "down" and "heath" vary considerably in the Oxford English Dictionary and I shall not bore your Lordships by repeating them. However, because of the very wide range of definitions, it is extremely important to have them made by one body and clear on the face of the Bill. I beg to move.
Viscount Bledisloe: My Lords, the necessity for an amendment to this effect, although perhaps not the amendment itself, was demonstrated by the reply of the noble Lord, Lord McIntosh of Haringey, to the debate on grassland.
The noble Lord, Lord McIntosh, appears to contemplate that the Countryside Agency will lay down certain definitions or instructions which will provide, for example, that improved grassland does not count as down. But under the Bill as it now stands the Countryside Agency does not have that power.
In the last resort, what is or is not "down" is a question of law and would be for the courts to decide. Neither the Government nor the Countryside Agency could say, "We have decided that improved grassland is not down and therefore we will not map it" if someone comes along and demonstrates that down does include certain areas where grassland is improved and therefore has to be mapped.
If the system intended is the highly desirable system which the noble Lord, Lord McIntosh, explained on Amendment No. 3, then he needs on the face of the Bill something which says that the countryside body shall define what is moor, heath or down and for that to be
968
conclusive. If the Countryside Agency is meant to be the judge of that, that is very good but the Bill does not allow it because anyone dissatisfied with its decision would be able to mount a challenge in court and say that what is "down" is a matter of law and that something is not being mapped which is down or that something has been mapped which is not down.
I hope that the noble Lord will take away that point and think about it. Clearly, the system which the noble Lord, Lord McIntosh, outlined is a very sensible way of resolving this question but that is not what the Bill provides at present.
Earl Peel: My Lords, there were many occasions in Committee when matters were referred back to the access authorities by the Minister, in the hope that everything would be all right. In many cases that will be so, but as the Bill is all about access on moor, heath and down, in the absence of clear definitions people will be unclear. That applies not just to the access authorities but to those whose access land will be incorporated in the Bill.
We constantly return to the point about reducing conflict, appeals and litigation. If we do not get certain things right at the beginning, those characteristics will raise their ugly heads time and again. I hope that the Government will listen seriously to my noble friend, whose amendment is fundamental.
Baroness Byford: My Lords, clarification is required because it is not right to leave the matter. I am anxious that the Government place a duty on the countryside body to make clear definitions, at least as a starting point. In the absence of such definitions, there will be total confusion. It has been suggested in earlier debates that we are misplaying some of our apprehensions, but if the Minister will have definitions clearly set down, that would relieve a lot of pressure and dispel the apprehension felt by many noble Lords.
Lord Whitty: My Lords, Amendment No. 5 would require the countryside bodies to set clear definitions of moor, heath and down. Some comments implied that those definitions should appear in the Bill, which would not be practicable or sensible.
The amendment's aim of ensuring sensible definition criteria for identifying moor, heath and down is sound. The Countryside Agency and the Countryside Council for Wales are engaged in drafting such material. The National Countryside Access Forum, which includes landowning and user groups, has already discussed the agency's paper setting out draft criteria—a copy of which is in the Library. The agency needs to consult more widely before reaching a firm and final view.
The requirement on the Countryside Agency will be to identify and map downland, for example—then as a separate exercise, to consider what is excepted because of its use or the other qualifications in the Bill. Much of the discussion has confused those two processes. Clarity of definition will not necessarily

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relate to a particular piece of land, so would not overcome all the problems and complexities of finally defining what is access land and what is not.
We do not believe that it is necessary or desirable to set rigid definitions in the legislation. We need to leave the access agencies some flexibility in carrying out their tasks. The precise parameters for moor, heath and down require careful consideration. The current proposals relating to England—I believe that a similar process will be observed in Wales—will need to be reviewed in light of the pilot mapping exercises by the Countryside Agency. The Bill already requires the countryside bodies to determine whether land is open country by reference to various categories.
The mapping process, accompanied by extensive consultation and a right of appeal for those interested in the land, provides sufficient safeguards for ensuring that work is done in a sensible, consistent and equitable way. The amendment would constrain that exercise and is not useful, despite our shared objective of achieving clarity.
Baroness Byford: My Lords, before the Minister sits down, perhaps he will clarify the following point. If definitions are to be delayed and the Countryside Agency will decide them, does the same apply to many of the other matters? We may be passing a Bill when we do not know what will happen at the end because definitions will not have been made.
Lord Whitty: My Lords, those matters would not be defined if we accepted the amendment, because the noble Earl is only asking for a requirement that the agencies define moor, heath and down. The criteria are in the consultative paper to which I have referred but neither the Bill nor the amendment places the definitions on the face of the legislation. Such a requirement might constrain the way in which the countryside agencies undertake their work of mapping. Definitions would not resolve problems such as those affecting hayland and haylage—which relate more to exclusions.
From the debate and the noble Baroness's last intervention, it seems that people are looking for more than the amendment would deliver. The process in which the countryside agencies are engaged will produce a degree of clarity, but it is not sensible to define how to achieve it. I hope that the noble Earl will not pursue his amendment.
Viscount Bledisloe: My Lords, will the Minister answer my point that if it is not for the Countryside Agency to define "downland", under what power in the Bill will the agency do as the noble Lord, Lord McIntosh, said and exclude improved grassland?
Lord Whitty: My Lords, the noble Viscount is confusing two separate processes. The identification of downland will be based on the criteria in the agency's draft paper and be subject to the results of consultation. Then there is the process of determining whether certain activities or the nature of what would
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otherwise be downland—for example, arable land—should be excluded. That consideration should be treated separately and be dealt with by the agencies in accordance with the rules in the appropriate schedule.
Viscount Bledisloe: My Lords, the noble, Lord, Lord McIntosh—
Noble Lords: No!
Lord Bach: My Lords, we must remember that we are at Report stage, not in Committee.
The Earl of Caithness: My Lords, I agree with the Minister that it would be totally wrong to seek a definition on the face of the Bill. I take his point that there are two distinct processes for the Countryside Agency—identifying and mapping the land, then considering exceptions from the general provision. However, unless there are clear definitions, how will the land be identified and mapped in the first place? There is nothing on the face of the Bill to say that that work must be done by one body or that it has been done. If what the Minister says is correct—I have no reason to doubt it as I have seen the effect of what he said—surely that should go on the face of the Bill. It will lead to greater clarity for all who will suffer under or receive the benefit of this Bill.
However, I am concerned about one point made by the Minister. He said that we must not be too clear in our definitions because the Countryside Agency must have flexibility to do this or that or to change its mind. We must bear in mind that, on 9th October 2000 at col. 25 of Hansard, the Minister said that there will be no compensation paid to landowners and occupiers because everyone will be treated equally. The words now used by the Minister put that statement in doubt. If there is to be flexibility, some people may be treated differently from others.
For that reason it is important to have a clear definition. I agree that it should not be on the face of the Bill. However, I believe that it should be clear on the face of the Bill that there is an instruction to one body to make clear definitions for the whole country. Therefore I intend to test the opinion of the House.
4.31 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 127; Not-Contents, 159.

Division No. 1

CONTENTS

Anelay of St Johns, B.

Bledisloe, V.

Arran, E.

Boardman, L.

Ashcroft, L.

Bowness, L.

Astor of Hever, L.

Brabazon of Tara, L.

Attlee, E.

Brookeborough, V.

Belstead, L.

Brougham and Vaux, L

Blaker, L.

Burnham, L.

Blatch, B.

Buxton of Alsa, L.

971

Byford, B.

Lyell, L.

Caithness, E. [Teller]

McColl of Dulwich, L.

Campbell of Alloway, L.

Mackay of Ardbrecknish, L.

Campbell of Croy, L.

Mackay of Clashfern, L.

Carnarvon, E.

Mancroft, L.

Carnegy of Lour, B.

Mar, C.

Carr of Hadley, L

Marlesford, L.

Carrington, L.

Marsh, L.

Cavendish of Furness, L.

Masham of Ilton, B.

Clark of Kempston, L.

Mayhew of Twysden, L.

Coe, L.

Miller of Hendon, B.

Courtown, E.

Monro of Langholm, L.

Craig of Radley, L.

Monson, L.

Cranborne, V.

Montrose, D.

Crickhowell, L.

Moran, L.

Cumberlege, B.

Mowbray and Stourton, L.

Dean of Harptree, L.

Murton of Lindisfarne, L.

Denham, L.

Noakes, B.

Dixon-Smith, L.

Northbourne, L.

Dundee, E.

Northbrook, L.

Eames, L.

Northesk, E.

Eden of Winton, L.

Norton of Louth, L.

Elliott of Morpeth, L.

O'Cathain, B.

Elton, L.

Palmer, L.

Erroll, E.

Park of Monmouth, B.

Feldman, L.

Peel, E.

Flather, B.

Pilkington of Oxenford, L.

Fraser of Carmyllie, L.

Prior, L.

Freeman, L.

Rawlings, B.

Gardner of Parkes, B.

Reay, L.

Geddes, L.

Rees, L.

Gibson, L.

Renton, L.

Glentoran, L.

Roberts of Conwy, L.

Gray of Contin, L.

Rotherwick, L.

Griffiths of Fforestfach, L.

Ryder of Wensum, L.

Seccombe, B.

Hanham, B.

Selsdon, L.

Hayhoe, L.

Sharples, B.

Henley, L. [Teller]

Shaw of Northstead, L.

Higgins, L.

Simon of Glaisdale, L.

Hogg, B.

Skelmersdale, L.

Hooper, B.

Slim, V.

Howe, E.

Soulsby of Swaffham Prior, L

Howell of Guildford, L.

Strange, B.

Hunt of Wirral, L.

Strathclyde, L.

Hurd of Westwell, L.

Swinfen, L.

Hylton, L.

Taylor of Warwick, L.

Jopling, L.

Thomas of Gwydir, L.

Kelvedon, L.

Trefgarne, L.

Kimball, L.

Trumpington, B.

Knight of Collingtree, B.

Vivian, L.

Laing of Dunphail, L.

Waddington, L.

Lamont of Lerwick, L.

Wade of Chorlton, L.

Lane of Horsell, L.

Walpole, L.

Lawson of Blaby, L.

Warnock, B.

Liverpool, E.

Young, B.

NOT-CONTENTS

Acton, L.

Blease, L.

Addington, L.

Borrie, L.

Ahmed, L.

Bragg, L.

Alderdice, L.

Brennan, L.

Alli, L.

Brett, L.

Amos, B.

Brooke of Alverthorpe, L.

Andrews, B.

Brookman, L.

Archer of Sandwell, L.

Brooks of Tremorfa, L.

Ashton of Upholland, B.

Burlison, L.

Avebury, L.

Carter, L. [Teller]

Bach, L.

Clarke of Hampstead, L.

Barker, B.

Cledwyn of Penrhos, L.

Bassam of Brighton, L.

Clement-Jones, L.

Beaumont of Whitley, L.

Cocks of Hartcliffe, L.

Billingham, B.

Cohen of Pimlico, B.

Blackburn, Bp.

Crawley, B.

Blackstone, B.

Currie of Marylebone, L.

972

Davies of Coity, L.

MacKenzie of Culkein, L.

Dholakia, L.

Mackenzie of Framwellgate, L.

Dixon, L.

Mackie of Benshie, L.

Donoughue, L.

McNally, L.

Dormand of Easington, L.

Maddock, B.

Dubs, L.

Mar and Kellie, E.

Elder, L.

Mason of Barnsley, L.

Evans of Parkside, L.

Massey of Darwen, B.

Ezra, L.

Miller of Chilthorne Domer, B

Falconer of Thoroton, L.

Molloy, L.

Falkland, V.

Morgan, L.

Farrington of Ribbleton, B.

Newby, L.

Faulkner of Worcester, L.

Nicol, B.

Filkin, L.

Northover, B.

Fitt, L.

Parekh, L.

Fyfe of Fairfield, L.

Patel of Blackburn, L.

Gale, B.

Peston, L.

Gibson of Market Rasen, B.

Plant of Highfield, L.

Goldsmith, L.

Prys-Davies, L.

Goodhart, L.

Ramsay of Cartvale, B.

Gordon of Strathblane, L.

Randall of St. Budeaux, L.

Goudie, B.

Rea, L.

Gould of Potternewton, B.

Redesdale, L.

Grabiner, L.

Rendell of Babergh, B.

Graham of Edmonton, L.

Rennard, L.

Greaves, L.

Richard, L.

Greengross, B.

Rodgers of Quarry Bank, L.

Grenfell, L.

Roper, L.

Hamwee, B.

Sainsbury of Turville, L

Hardy of Wath, L.

Sandberg, L.

Harris of Greenwich, L.

Sawyer, L.

Harris of Haringey, L.

Scotland of Asthal, B.

Harris of Richmond, B.

Serota, B.

Harrison, L.

Sharp of Guildford, B.

Haskel, L.

Shepherd, L.

Hayman, B.

Shore of Stepney, L.

Hollis of Heigham, B.

Shutt of Greetland, L.

Howells of St. Davids, B.

Simon, V.

Howie of Troon, L.

Smith of Clifton, L.

Hoyle, L.

Strabolgi, L.

Hughes of Woodside, L.

Symons of Vernham Dean, B.

Hunt of Kings Heath, L.

Taverne, L.

Irvine of Lairg, L. (Lord Chancellor)

Taylor of Blackburn, L.

Thomas of Walliswood, B.

Islwyn, L.

Thornton, B.

Janner of Braunstone, L.

Tomlinson, L.

Jay of Paddington, B. (Lord Privy Seal)

Tordoff, L.

Turnberg, L.

Jenkins of Putney, L.

Turner of Camden, B.

Judd, L.

Varley, L.

King of West Bromwich, L.

Walker of Doncaster, L.

Kirkhill, L.

Wallace of Saltaire, L.

Lea of Crondall, L.

Walmsley, B.

Lester of Herne Hill, L.

Watson of Richmond, L.

Levy, L.

Wedderburn of Charlton, L.

Lipsey, L.

Whitaker, B.

Lockwood, B.

Whitty, L.

Lofthouse of Pontefract, L.

Wigoder, L.

Longford, E.

Wilkins, B.

Ludford, B.

Williams of Crosby, B.

Macdonald of Tradeston, L.

Williams of Elvel, L.

McIntosh of Haringey, L. [Teller]

Williams of Mostyn, L.

Woolmer of Leeds, L.

McIntosh of Hudnall, B.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.43 p.m.
Schedule 1 [Excepted land for purposes of Part I]:
[Amendments Nos. 6 and 7 not moved.]
Earl Peel Earl Peel moved Amendment No. 8:
Page 63, line 8, at end insert—
(". Woodland or forest which is fenced against access land which adjoins or surrounds it.").
The noble Earl said: My Lords, the Bill provides for a right of access to mountain, moor, heath, down and registered common land but it does not provide a right of access to woodland. The Government were strongly advised by the Forestry Commission, the Countryside Agency, English Nature and the Countryside Council for Wales to adopt a voluntary approach in improving public access to woodland. That is reflected in the provision for voluntary dedication of land to access in Clause 16.
However, there appears to be a lack of clarity, which must be overcome, about the treatment of woodland which either regenerates naturally on access land or is planted on such land before or after the new right comes into effect. As in general the Bill does not provide a right of access to woodland, it should follow that areas of woodland within parcels of access land should not be mapped as access land and that access land which subsequently becomes woodland— whether by natural regeneration or planting—should cease to be access land. It is not clear whether or not that will be the case. The best way to make the position of woodland clear would be to make it excepted land under Schedule I and the amendment is designed to achieve just that.
On Report, the Minister was asked whether the right of access would extend to common land which was wooded. He said:
"If it is woodland, which is not part of the increased right of access under the Bill unless it is voluntarily dedicated by the landowner, I imagine that the Bill would not give general access to it". —[Official Report, Commons, 13/6/00; col 807.]
If that is the case with common land covered by woodland, I suggest that it must be the same for any access land covered by woodland.
I accept that it would be impractical and undesirable to exclude access from small clumps of trees which have perhaps regenerated or been planted—that is why the amendment deals only with fenced woodland—but appropriate planting and natural regeneration should be encouraged. Indeed, English Nature was recently active in the North of England, involving itself with owners and occupiers to try to encourage such woodland on the edge or moorland. It has been most successful in that.
Furthermore, it should be realised that woodland is important for certain biodiversity action plan species, in particular the black grouse. Again, English Nature has been actively involved in trying to enhance that species through proper planting schemes. It should also be remembered that many woodland areas have been planted for opportunities for shooting. It is true to say that a large percentage of woodland has been developed with that specifically in mind.
I am concerned because any measures in the Bill which discourage small appropriate woodland planting would be a great shame. I suspect that if access provisions in the Bill were allowed to include
974
woodland, much of it would cease. Therefore, I ask the Minister to consider the amendment. I hope that he agrees that it would be inappropriate for woodland on access areas to be included; in other words, the land should be exempt. I beg to move.
4.45 p.m.
Lord McIntosh of Haringey: My Lords, the noble Earl, Lord Peel, is right in saying that woodland is not added to mountain, moor, heath or down. In general terms, it is not covered by the Bill. However, it is possible that maps of open country could include small areas of woodland if they are part of a larger area of mountain, moor, heath or down. As the noble Lord, Lord Whitty, said in Committee, it would be a matter of discretion for the countryside body whether to exclude such pockets of woodland. My noble friend also pointed out that it is most unlikely that a fenced plantation would be mapped as part of open country. However, it would not be appropriate to except access from a naturally occurring woodland simply because, for example, it is fenced to exclude livestock.
The noble Earl, Lord Peel, made a valid point about biodiversity but the conservation provisions in the Bill should be introduced in order to protect biodiversity and conservation. Naturally occurring woodland is increasingly fenced to exclude livestock but that is not the same issue. There is no intention to extend the right of access to woodland by stealth. One is concerned only with access to mountain, moor, heath, down—some of which may be encroached upon by small areas of woodland—and common land, which historically is often woodland. The question is whether the woodland occurs naturally, as one would expect on common land.
I am not convinced that this amendment with its emphasis on fencing is appropriate in terms of its effect or necessity or the definition of the threshold between land which is open country and land which is not. I hope that the noble Earl will not press his amendment.
Earl Peel: My Lords, I received the answer that I expected. Perhaps I should take comfort from the fact that there will be flexibility. I understand the point which the Minister makes. Perhaps the noble Lord's most telling point is that there is no intent to extend access by stealth. I never thought that there was such an intent, but it is nice to know that that is the position. Having heard the Minister's response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 9:
Page 63, line 9, at end insert ("which curtilage shall be deemed to include all land within 30 metres of a building which is a dwelling-house").
The noble Viscount said: My Lords, this amendment turns to a different topic. Schedule 1 excludes from access land buildings and their curtilage. One often has a dwelling-house which has a garden or curtilage on one or more sides, but is not protected on its remaining sides and open land comes

975
virtually to the door. In Committee a number of noble Lords expressed serious concern that it would be very disturbing for people who lived in such a house if, particularly at night, those who exercised the right of access came right up to the house. The aim of the amendment is to provide a minimum area of protection on all sides of the dwelling-house without detracting from the size of the curtilage.
My amendment proposes that the area of protection should be 30 metres, whereas Amendment No. 11 in the name of the Government suggests 20 metres. I assume that, in his customary spirit of compromise, the Minister will suggest 25 metres. However, I shall weaken my bargaining position by admitting that if the noble Lord does not do so I shall not divide the House for the sake of 10 metres. I beg to move.
Baroness Byford: My Lords, am I correct in believing that if the Minister speaks to his amendment I cannot make a contribution?
Baroness Farrington of Ribbleton: My Lords, to assist the House, if any noble Lord wishes to speak to a group of amendments he should do so. I want to clarify the position. I believe that if the Minister moves a lead amendment other noble Lords may speak thereafter. I understand that the noble Baroness wishes to speak now.
Baroness Byford: My Lords, if I wait for the Minister to speak, I cannot speak myself. I understand that I can speak. I am trying to be terribly correct. I rise to support the amendment moved by the noble Viscount. As the noble Viscount will not persuade the Minister to accept 30 metres, I understand that he is content to accept 20 metres. In rising to support the amendment, I thank the Minister for tabling a government amendment which deals with a problem which was debated earlier.
I should like to clarify two matters. Amendment No. 11 in the name of the Government seeks to insert paragraph 2A, presumably after paragraph 2. The provision as it now stands deals with,
"Land covered by buildings or the curtilage of such land".
Presumably, the Government intend to include land within 20 metres of a dwelling. I seek clarification on the difference between paragraph 2A and what stands in the Bill now.
Baroness Carnegy of Lour: My Lords, can we not hear the Minister speak to his amendment before we speak?
Lord Williamson of Horton: My Lords, I intervene briefly. We have a good number of amendments to deal with and I do not want the Minister to fail to complete his century before close of play. This amendment is a good example of where the Bill is lacking in certainty, and clarification can be achieved. That has been the theme of the whole debate at Report stage so far, and no doubt we shall return to it en masse in relation to other issues. The Bill as it stands makes no specific reference to dwelling-houses in the
976
excepted land, although it refers to tramways, golf courses and what have you. Obviously, it is important that those who live in the country are clear as co where access land around their dwelling-houses begins and ends. The government amendment before us is excellent. I would have preferred 30 metres, but I am content with 20 metres.
As to the point raised by the noble Baroness, Lady Byford, I am content with the way in which the Government have presented the amendment with a specific heading to deal with dwelling-houses, leaving other buildings to be dealt with separately. That is an advantage from the point of view of presentation. In any event, I believe that, except for those people who do crosswords, the great majority of the population do not know what a curtilage is. The government amendment is clear and meets the point, and I welcome it.
Lord Whitty: My Lords, as the noble Viscount, the noble Baroness and the noble Lord have all indicated that, with varying degrees of reluctance, they accept 20 metres, I shall not put the case for 20 versus 30. The government amendment responds to indications at previous stages of the Bill that there was a problem about the security of people who live in isolated cottages and other places in the countryside. Although I was reluctant at the previous stage to concede the point on the basis that most people live fairly dose to a right of way, I recognise that isolated dwellings give rise to particular problems. Therefore, we believe that it is sensible to place a 20-metre circle around such houses. We have confined the amendment to dwellings. The question as to whether it should be extended to other buildings arises on the next group of amendments. In case the noble Earl is in any doubt, I shall resist it.
I believe that I have answered the point raised by the noble Baroness. The amendment relates specifically to dwellings, whereas some of the other provisions relate to all buildings. I shall move my amendment at the appropriate point, and I hope that the noble Viscount will withdraw his amendment.
Viscount Bledisloe: I am amazed that the Minister has not given me 25 metres. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Peel Earl Peel moved Amendment No. 10:
Page 63, line 9, at end insert ("and in any case the curtilage shall extend for not less than 20 metres from any such building in every direction").
The noble Earl said: My Lords, I am grateful to the Minister for a clear indication as to his reaction to my amendment. I welcome the fact that the Government have taken on board the points raised in Committee. We now have protection for dwelling-houses based on 20 metres, which is probably quite adequate. I acknowledge that in Schedule 1 access to all land covered by buildings, or the curtilage of such land,

977
would also be prohibited. I accept that those two separate issues are important and go some way to address the problem.
However, there are many cases in which buildings have no curtilage and some dwelling-houses back directly on to access land. Particularly at night, very often those dwelling-houses cannot be distinguished from a barn due to planning restrictions or design standards. In a number of cases at night people will be unable to distinguish between a dwelling-house and a barn. That is why my amendment goes further and suggests that there should be a 20-metre restriction around all buildings.
There is also a security issue. Many barns and buildings contain valuable machinery—all kinds of agricultural hardware—and stock. It will give people a greater sense of security to know that those people exercising their rights under the Bill will keep 20 metres away from all such buildings. Therefore, it is not an unreasonable amendment.
I have another point; namely, with the additional access that the Bill will provide, the liability to owners and occupiers of trespass on land which is not access land will be enhanced. On the back of that I suggest that there will be increased costs. Although it is somewhat detached from the points that I am making, perhaps we should bear that factor in mind. My amendment will allow for an exclusion area of 20 metres around all buildings. That will give people the additional amount of security which they deserve. I beg to move.
5 p.m.
Lord Greaves: My Lords, I intended to speak on the previous amendment. I failed to do so before it was withdrawn. But the principles are the same on this amendment.
I speak as someone who lives in a house where people can walk along the back wall of what is part of the house. So I do not get terribly worked up about these matters. I understand that in isolated separate dwellings in remote places people may become concerned. That is not a major problem, since the number of dwellings which will be affected is actually quite small. Clearly, some will be affected.
I have closely scrutinised the 2½-inch maps of the Pennines and the North Yorkshire moors. I can find very few dwellings or buildings which would be affected. As was discussed in Committee, in practice most of the buildings have rights of way quite near them and often going directly past them. So there is no major problem in gaining access to the access land.
There are two problems with the amendment. First, the noble Earl, Lord Peel, said that people will find it difficult to distinguish between what is and what is not a dwelling, particularly if a dwelling is actually a building in which people are living as opposed to a cottage or indeed an old farmhouse in which people used to live. Some thought is needed on how that matter can be dealt with. However, I would not
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support the noble Earl's proposal that all buildings should be included. That would be unnecessarily restrictive.
There is a second, more difficult problem. How will people know where the boundary of access land lies if there is a circle 20 metres around dwelling-houses, particularly if it is not clear whether or not the buildings are lived in? The Bill rightly accepts the principle that in many cases the boundaries will be drawn along obvious features on the ground—banks, walls or natural features—rather than the precise features at the edge of what may be moor, heath and so on, as opposed to kinds of pasture. That principle is rightly established in the Bill. It is necessary for people to understand where the boundary lies of the land to which they are entitled to have access.
What is now proposed is an entirely arbitrary boundary. It will almost never be the case that a boundary 20 metres around a dwelling will coincide with any natural features. That may encourage people to erect fences where fences do not exist at the moment. That may be detrimental to the local landscape. It may be that they are not able to do that because of the constraints in the area. I am trying to find out how the boundary of access land will be established when that access land is an arbitrary 20-metre circle around a building which does not coincide with anything on the ground.
Baroness Carnegy of Lour: My Lords, the amendment deals with a small but important point. I base what I say on my own experience.
On a hill farm one often has a dwelling-house and then farm buildings 50 to 100 yards up the hill. If the farm buildings contain cattle there will probably be straw storage as part of the building. There will also be straw within the building. The great fear for those in the dwelling-house is that the people walking about at night with torches might set fire to that building. A long time ago that happened on three successive occasions on land for which I was responsible. If it was known that people had to stay outside a boundary, and one saw torches within less than 100 yards of one's house, one would know whether those people were walking lawfully across the land or whether they were trying to get into the building. It would be a great advantage if Amendment No. 10 were accepted. It is a small point. But it would simplify the whole arrangement in the minds of the public, as the noble Lord, Lord Greaves, said.
Viscount Brookeborough: My Lords, I wish to make two points in support of the amendment. First, of what benefit will it be to those people who want to enjoy the countryside to be able to walk around the buildings? They are there to enjoy the countryside. That is why we are giving them access to it.
Secondly, before the Minister tells me to go back to Northern Ireland—that is not relevant to this argument and I realise he did not do that last time—perhaps I may suggest that we have something from which the rest of the United Kingdom might learn just a little. Because of our problems in Northern Ireland,

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all military and police personnel have had access to the countryside throughout the hours of darkness and daylight.
It is extremely important that people do not surprise animals within the area of farm buildings. The noble Lord, Lord Greaves, mentioned rights of way. That is entirely different. Animals get used to routine. They will get used to a football match or a quarry blasting in the countryside. They will also get totally used to a right of way where children laugh and shout and to whatever else might happen on that right of way.
However, they are very susceptible to being surprised. In the farm buildings there will often be cattle—especially in wintertime—enclosed in close confines within metal bars, standing on slippery floors because of slats and so on. There may be sheep which are either about to lamb or have just lambed. So there may be lambs all over the place. When they are surprised, ewes abort their lambs and cows abort or give birth to dead calves.
I am not producing these facts out of a hat. We have had hundreds of thousands of pounds worth of claims. Those noble Lords who have served in Northern Ireland, especially the noble Earl, Lord Arran, will know perfectly well that the claims arose as a result of people surprising animals at night. I often patrolled in Fermanagh at night. We were all farmers so we had some idea of what would happen. When you came up to a farm in the dark you had to be incredibly careful. Apart from anything else, animals gave you away if you were trying to he covert.
As I said, we have had claims for damages. I simply do not see why people who want to enjoy the countryside should be allowed to enjoy the farmyard when it is none of their business and there is an inherent danger. Indeed, if anyone is hurt, there will be a claim the other way. I support the amendment.
Lord Marlesford: My Lords, I support my noble friend Lord Peel. The Government should look at this amendment as a way of making the legislation acceptable to the rural community. We are enacting a very big change and, in general, as the Government know, I support it. But it is important that we should not unnecessarily antagonise people who live and work in the countryside. There is an increasing amount of rural crime of every kind, particularly thefts from farm buildings—tractors, batteries and every type of small tool. It is not a matter of whether there is a specific line—a circle of 20 metres—around a building. What my noble friend seeks is something in the statute which makes it possible for the land occupier, owner or farmer to challenge someone who perhaps is up to no good without that person being able to say, "I have a perfect right to be here".
Such challenges would not be made very often. Ordinary, genuine walkers who strayed within the 20 metres—it would be much easier if we said 100 yards as most people in my part of the country would understand that a great deal better—would not be a
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problem. It is a matter of making the legislation "country friendly". If that is not done, there is a danger of causing antagonism that could be avoided.
Baroness Miller of Chilthorne Domer: M y Lords, noble Lords have set out a number of reasons why the amendment of the noble Earl, Lord Peel, makes some sense, particularly if we are to have night access. It is hard to prejudge exactly where we should go on this issue, but I understand the arguments that have been put forward. How will people tell whether a building is a dwelling-house or a farm building? I understand also the argument about animals being frightened. I look forward to hearing the Minister's reply to the amendment.
5.15 p.m.
Lord Whitty: My Lords, I do not accept the arguments that have been put forward. I indicated earlier that I was reluctant to give the concession in relation to the 20 metres. I did so because in many circumstances the most obvious way for people to move around access land would involve going along areas that are fairly close to buildings. That, regrettably, is the fact in many parts of the country. There is therefore a balance to be struck. I was persuaded that the protection and the feeling of security of people who lived in houses that were isolated but would be passed fairly close by people who were using the area overrode the need to provide walkers with the most obvious path from which otherwise they would have to divert unless it was a right of way. I repeat the point that many people in the countryside will be passed considerably closer than the 20 metres by rights of way.
I have accepted the balance of protecting rural households in isolated dwellings where there is not a right of way close to them. That is common sense. However, the noble Earl's amendment suggests that every shed or isolated building, whether used or unused, should be surrounded by a 20 metre exclusion zone. That is a serious incursion into many areas where the obvious path will be within the 20 metres, particularly as regards access higher land. I therefore suggest that the balance suggested by the noble Earl is not appropriate.
The noble Viscount, Lord Brookeborough, said that we are talking about farmyards. We are not talking about farmyards. In most cases farmyards will be excluded, but in any case we are talking here about isolated buildings around which there is not a curtilage greater than 20 metres and there is not a garden or cultivated area. Therefore, we are not talking here about access to what, in common parlance, would be regarded as a farmyard. We are talking about protecting the privacy and security of people who live in isolated cottages. We are not talking about denying the right of passage to every shed that happens to exist in the countryside. The noble Earl is pressing further unnecessary exclusions from the Bill. I do not think that we should accept them.

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The noble Lord, Lord Greaves, was concerned about how people would know. In relation to dwelling-houses, it would be one of the simpler rules. People would know that if it was a house they should not move within 20 metres of it. That would be common right across the countryside. If the garden was larger than 20 metres, they would keep that far away as well. That is a fairly straightforward rule which can be justified to walkers. The idea that every building could similarly be protected is not appropriate and would be a serious incursion into the amount of land that was available. I therefore hope that the noble Earl does not pursue the amendment and sticks with the protection of country dwellers rather than of every building that happens to be in the countryside.
Earl Peel: My Lords, I received the answer from the Minister which he told me in advance of moving the amendment I would receive. I thank him for that. At least he has been consistent.
The Minister said that he was reluctant in the first place to give 20 metres. He may be interested to know that in their right to access legislation the Danes give 150 metres. But I suspect that the Government are not particularly interested in what the Danes do. That apart, the noble Lord said that my amendment would be a serious incursion into the amount of land that was available. I do not think that that is so. My noble friend Lord Marlesford was absolutely right. We are looking for something that will make people realise that the legislation is not there to drive a wedge between town and country people. That is an important point, but it is one that is so often ignored.
I congratulate the noble Viscount, Lord Brookeborough, on opening the night-time access debate very successfully indeed. He made some extremely telling points. The Government should heed carefully the information given by the noble Viscount from his experiences in Northern Ireland.
I was interested in the comments made by the noble Lord, Lord Greaves, and the noble Baroness, Lady Miller, from the Liberal Democrat Benches. I think I am right in saying that they have a degree of sympathy for the amendment. I shall take the opportunity of discussing the matter further with them. Perhaps we will come back at the next stage with a joint Conservative/Liberal Democrat amendment. That would make an interesting move forward! Given those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 11:
Page 63, line 9, at end insert—
("2A. Land within 20 metres of a dwelling.").
On Question, amendment agreed to.
Baroness Byford Baroness Byford moved Amendment No. 12:
Page 63, line 10, at end insert ("or allotment").
The noble Baroness said: My Lords, this amendment provides for a small addition which I hope that the Minister will be able to accept. On studying the descriptions and definitions here, we felt that allotments—which are particular and form a peculiar type of land use—should be covered by the regulations in the Bill. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, as a firm supporter of allotments, I understand why the noble Baroness has tabled this amendment. Given that the House has shown itself keen on definitions this afternoon, does her proposition cover allotments which are defined as such? If someone digs a patch of land 12 metres square and plants a few Brussels sprouts, would that qualify?
Baroness Byford: My Lords, I hope that it is in order for me to respond to the noble Baroness. I had assumed that the amendment would cover what are classed as "acknowledged" allotments rather than any patch of land which has been dug. Official allotments are registered and it is those to which I refer in this amendment.
Lord Whitty: My Lords, if the noble Baroness is referring to registered allotments rather than to the kind of circumstances outlined by the noble Baroness, Lady Miller, or to areas where, perhaps historically, allotments were sited but have now fallen into disuse, such as in some moorland areas as a result of wartime or other cultivation, then I have some sympathy with her amendment. We shall need to tidy it a little in that respect. If the noble Baroness would allow me that leeway and withdraw her amendment at this stage, I shall then consult with her between now and Third Reading.
Baroness Byford: My Lords, I am most grateful to the Minister for that response. Many people are very keen on allotments and an amendment to the Bill would provide a solution to this small problem. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Lord Northbrook Lord Northbrook moved Amendment No. 13A:
Page 63, line 21 (leave out "covered by pens") and (insert "of under 10 hectares in size").
The noble Lord said: My Lords, I wish to move Amendment No. 13A and speak at the same time to Amendment No. 13B. In doing so, I should declare an interest as a landowner who does not own livestock, but who rents out grazing to a local farmer.
The background to these probing amendments is threefold. First, they address the important issue of dogs fouling pasture. This presents a serious potential problem for cattle. If dog faeces gets into grass cut for hay, it can cause potentially serious health problems. Secondly, inclusion of these areas will, as has been mentioned in discussions on previous amendments,

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make the task of mapping much easier. Thirdly, the lack of disturbance will be of benefit to ground-nesting birds in permanent pasture. I beg to move.
Lord Whitty: My Lords, I think that the noble Lord may be taking us forward, in part, to the rather lengthy series of groupings that deal with dogs, which we will discuss later. However, the noble Lord's amendment would exclude walkers with or without dogs. For that reason, I would resist it. Plenty of perfectly viable access countryside comprising land of more or less than 10 hectares already exists. Walkers on such land coexist with grazing livestock. It would be inappropriate to exclude all of that land from walkers. I therefore could not accept the amendment.
The issue of walkers with dogs raises different and more widespread concerns. The Government have already ensured that the Bill contains certain restrictions in relation to dogs. These require walkers to keep dogs on leads while on access land during March to July and at all times in the vicinity of livestock. The phrase "in the vicinity" would certainly include within a field of 10 hectares. Perhaps we should have that discussion when we discuss the amendments relating to dogs. However, because this amendment is more widely drawn, I would ask the noble Lord not to pursue it.
Lord Northbrook: My Lords, I thank the Minister for his reply. I shall read carefully his response in Hansard. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13B not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 14:
Page 63, line 22, at end insert—
("9A. Land habitually used for the training of racehorses.").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 17. These government amendments recognise the special needs of the racehorse training industry.
We accept that there are real concerns about how best to reconcile the new right of access with the training of racehorses on land which qualifies as access land. We have listened to the debates in this House and to the industry. As a result, we have brought forward these amendments in order to target action where it is needed.
I believe that there is common ground between the Government and the racing industry that the exclusion of access from training gallops should not be more than is required to ensure the safety of employees, their horses and the public. These amendments will therefore provide for access to be excepted from land used for training racehorses between the hours of sunrise and midday and at other times when the land is being used for that purpose. I beg to move.
The Earl of Carnarvon: My Lords, I should declare an interest as an owner and breeder of racehorses. The
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Government have listened carefully to the views of the racing interests as regards access to these areas. I am extremely grateful to the Minister and his advisers for the helpful way in which they have looked at this problem and come forward with their amendments.
We were considering an extremely dangerous situation where the public at large might quite innocently walk across land used for racehorses in the middle of an exercise during the early hours of the morning. Someone could easily have met with serious injury. I believe that the amendment will be helpful to trainers, their staff, riders and jockeys.
I believe that it may interest noble Lords to know of the statistics at Newmarket, supplied by the Jockey Club land agent. Some 24 hospitalised cases are reported every year, along with one death—and those incidents do not in any way involve the general public. If someone should stand up after sleeping behind a bush just as horses—in particular two year-olds— walked by, the horses would scatter. Serious damage would probably be incurred by the horses but, more importantly, serious injury could easily be caused to the riders.
What the Government have suggested is excellent and will be welcomed by all sections of the racing industry.
Baroness Trumpington: My Lords, my name was added to the amendment tabled in Committee which has led to this most welcome pair of government amendments. Perhaps I may add my thanks. This move will give a great many people pleasure and will probably save many lives.
Perhaps I may ask the Minister a question: are point-to-point courses to be covered by the same conditions that are to be applied to racecourses and gallops?
Baroness Byford: My Lords, from these Benches I wish to express my thanks to the Minister for tabling these two amendments. I should like in particular to compliment the Minister on including sub-paragraph (b) to new Paragraph 13 in Amendment No. 17. As noble Lords know, some training takes place in the morning, while some takes place in the afternoon. The Government have recognised this and have offered the required flexibility. That is much appreciated.
Baroness Carnegy of Lour: My Lords, I apologise that I did not intervene before my noble friend rose to speak. I also attended the meeting arranged by the noble Lord, Lord Whitty, to consider this subject. I appreciated enormously the sensitivity with which he listened to the discussions.
Perhaps I may ask a question. My contact on this subject is a trainer with gallops in the Lam bourn area. He told me that severe problems can arise if bottles or cans are dropped on the gallops because they can hurt the horses very badly. Does the Minister have it in mind to ensure that any code of practice or guidance which is issued to walkers will point out the importance to the welfare of horses of not dropping litter in areas which are used as gallops?
5.30 p.m.
Lord McIntosh of Haringey: My Lords, let me to try to respond, with thanks, to the comments that have been made.
So far as concerns point-to-point meetings, my understanding is that if such a meeting is to be held on access land, an application would be made for the closure of that land for that purpose during the period that the point-to-point is taking place.
Of course, not all training gallops will be mapped as open country for the purpose of right of access. I would guess that most gallops would take place out of open country because their management and setting would not qualify them to be mapped as mountain, moor, heath or down. We have made this provision for the minority which fall into that category.
As to litter, bottles and cans and so on are litter. The dropping of litter is an offence in many places, not only on access land. The same regulations will apply to access land as to other places.
On Question, amendment agreed to.
Lord Hardy of Wath Lord Hardy of Wath moved Amendment No. 15:
Page 63, line 24, at end insert—
(" . Land within a recognised nature reserve where public access could destroy or damage protected fauna or flora.").
The noble Lord said: My Lords, Amendment No.15 seeks to include in the list of excepted areas,
"Land within a recognised nature reserve where public access could destroy or damage protected fauna or flora".
I do not wish to detain the House for long. Noble Lords on both sides of the House are aware of many of the arguments that could be advanced in support of the amendment. We have, for example, on frequent occasions referred to the problems in regard to ground-nesting birds and the way in which they can easily be disturbed and their breeding patterns ruined. It is true that many farmers and landowners take a sympathetic view towards the survival of these species—but not all. Sometimes it is desirable that birds should live and breed in a nature reserve.
It is even more important for plants. In a communication this morning from Plant Life—one of the plethora of conservation bodies—I was reminded that many counties in England have seen almost one species of wild plant disappear each year. Many noble Lords may think that is certainly the case in the arable areas of southern and eastern England, but in Cumbria, in the last century, at least 48 species of wild plants have gone.
The people who will enjoy the access provided in the Bill will not wish wantonly to trample or uproot such plants, but the plants could be endangered by their movement, especially if they are unaware of where the plants are. The difficulty is that if one had a rare plant and drew it to the attention of walkers, 99 per cent of them would recognise the importance of ensuring that that plant survived. But the other 1 per cent would recognise that, by its very rarity, it has value, and they would uproot it. Our experience with limestone pavements has shown that quite a lot of people have
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made a great deal of money by ravishing that important part of our natural heritage. Such people might decide that the uprooting of a rare wild plant was an equally profitable venture.
At the same time, however, people need to be able to see the rare birds and the rare plants. It would be therefore a good idea for the nature reserves to enjoy a degree of protection that allows them to steer and guide ramblers and show them, or let them see, where the rare plant or the rare bird may be. If there is no such protection, ramblers will be able to walk willy-nilly across nature reserves and perhaps more harm than good will be done.
I recognise that the Government are extremely committed to the causes of biological diversity and the survival of the species. Adding this provision to the Bill would strengthen the Government's reputation in that area.
I am not suggesting—the amendment does not suggest or require—that the whole of sometimes very extensive nature reserves are protected. But the part of a nature reserve which contains the nest of a rare bird or a rare species of flower should be protected. I do not say that rare species should be protected to the point where they cannot be seen. Those noble Lords who visited RSPB reserves in Scotland will have seen what can be done in this respect. The public are able to watch the osprey there because the reserve is organised in a way which enables them to do so. The provision in the amendment would encourage such opportunities.
I hope that the Minister will feel able to accept the amendment. If he is unable to do so, I hope that he will bring forward a version of the amendment which will provide this opportunity. Too many species—particularly flora—are now hanging on by the skin of their teeth. They need all the help that can be given if they are to survive. This seems to me to be a useful way of contributing to their survival. I beg to move.
Viscount Brookeborough: My Lords, I support the amendment. Perhaps I may offer the Government a suggestion. We have heard already that the MoD has sanctuaries in many places—on Salisbury Plain, at Lulworth Cove and so on—and that it is one of the best custodians of conserved land in this country. If we look at the way in which it manages such areas, we will find that the MoD has become very flexible in its understanding of which areas people should be kept out of and which areas they should be allowed into. After all, the MoD has full access to training areas at all times of the day and night, but there are parts of every training area in Great Britain to which soldiers are not permitted access because of the value of the flora or fauna to be found there, or for some other reason. I support the amendment.
Baroness Byford: My Lords, we on these Benches support the thrust of the amendment of the noble Lord, Lord Hardy. He admitted that his amendment may not be perfect and he has indicated that he is willing to allow the Minister to come back with a different version.

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The amendment concerns "a recognised nature reserve". Perhaps one of the Government's fears is that anyone, anywhere, could say that a site should be excepted land. Many voluntary organisations are working to preserve and conserve the countryside. If this is not acknowledged to be a problem, the fear is that that support may dwindle. That would be a great shame because individuals make contributions either through the practical running of the centres or through the money they raise.
The noble Lord seeks some form of protection within nature reserves which enables them to be enjoyed by people, but on an organised basis. If I understand the noble Lord correctly—which I hope I do—I am happy to support the amendment.
Baroness Farrington of Ribbleton: My Lords, the purpose of the list of exceptions in Schedule 1 is to exclude public access from land which may be mapped as open country or registered common land but to which a right of access should none the less not apply—for example, buildings and their curtilages. Nature reserves do not fall into that category.
English Nature has powers stemming from the National Parks and Access to the Countryside Act 1949 to designate land as a national nature reserve or a local nature reserve, with the aim of securing protection and appropriate management of the most important areas of wildlife habitat. Many reserves have public access. Indeed, they positively encourage it, as my noble friend Lord Hardy of Wath said. With relatively few exceptions, access and wildlife can co-exist without significant problems.
My noble friend referred to public access in Scotland to see the osprey. There is a marvellous bird sanctuary near the Llyn Brianne reservoir in Wales where the same applies. There should be no automatic presumption that the conservation of such sites is incompatible with access, particularly when account is taken of the modest nature of the new right and the restrictions that will apply to it.
If a reserve has been mapped as open countryside or registered as common land and there are particular problems with access, the Bill specifically provides for closures or restrictions on grounds of conservation. Clause 24 provides for the relevant authority—the Countryside Agency in England and the Countryside Council for Wales, or in national parks, the relevant national park authority—to issue directions excluding or restricting access for reasons of nature conservation. In doing so, the authority must have regard to the advice of the appropriate statutory advisory body: English Nature for land in England. We have made provision for any case to be referred to the Secretary of State (or the National Assembly) if English Nature (or its Welsh equivalent) still has concerns.
There is no question of compromising our conservation objectives in favour of access. Part III of the Bill reflects our commitment to the protection of wildlife and nature conservation. We are determined to ensure that vulnerable habitats are protected as
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necessary. But the impact of access on wildlife must be put in perspective: most designated reserves have some form of access and this has not given rise to significant problems.
The noble Viscount, Lord Brookeborough, raised the issue of MoD land. There is a variety of factors. It is certainly the case that the MoD is very proud of some of the work that it has done. On occasions, it may be because slightly less mechanised and less intensive forms of farming take place on some MoD land. However, I agree that the MoD has a good record.
The Government recognise that there may be cases where conflicts arise and where access needs to be restricted, or even excluded altogether. I assure my noble friend Lord Hardy that the Bill provides for that. We therefore believe that a blanket exclusion of nature reserves is not the right approach; it is neither needed nor justified. I hope that I have thoroughly convinced my noble friend, and that he will not feel it necessary to press his amendment.
Lord Hardy of Wath: My Lords, I am grateful to my noble friend, as I am to the noble Baroness, Lady Byford, and the noble Viscount, Lord Brookeborough. Before responding to my noble friend, perhaps I may say to the noble Viscount that I am well aware of the contribution made on Ministry of Defence land. The MoD once embarrassed me, on the day before I was to present the Conservation of Wild Creatures and Wild Plants Bill. The Bill included the protection of the natterjack toad, which is extremely rare. The officer in charge in the Aldershot-Salisbury area contacted me to say that they were just about to release several thousand natterjack toads that they had bred on Salisbury Plain. I asked him to treat it as a matter of great confidentiality; otherwise, my Bill might have been in peril the next day.
One of my anxieties has not been entirely relieved by my noble friend's response. I accept the reference to the 1949 Act. However, one of the difficulties in this whole area is that the location of species needs to be kept secret; otherwise they will be stolen. I do not know whether there are any Snowdon lilies left in Snowdonia, but they were among the rare species that were protected under my Bill, which became an Act in 1975. One of the reasons for their decline was that people had gone round stealing them.
If the matter is left to English Nature, it is possible for the risk of publicity to be greatly enhanced. If it is left with the conservation bodies, they can be a little more discreet. That is one reason why the lady's slipper orchid still survives, when it was down to only one plant in 1976.
If we are to ensure the survival of certain natural species, and the guarantee of consistent support for biological diversity in a sensible way, it may well be that a little more responsibility or influence should be accepted on the part of the voluntary bodies—which work happily with English Nature and will continue to do so while my noble friend Lady Young is involved.
I should like to clear up one misapprehension, which my noble friend might acknowledge. The amendment relates to land within nature reserves. I did not intend

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it to apply to the whole of a nature reserve—because some are very large indeed. But there may be pockets of a nature reserve where there is a sudden recognition or identification of an extremely rare species. Fast action may be needed, and may be more likely to come about if those who are responsible for the reserve can respond immediately to that need. The amendment would provide a greater degree of flexibility. Perhaps my noble friend and her assistants will re-examine the whole question of the need to maintain confidentiality and the ability to respond urgently should the need arise. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
The Duke of Montrose The Duke of Montrose moved Amendment No. 16:
Page 63, line 24, at end insert—
(" . Land subject to a management agreement under the countryside stewardship scheme, or other environmental protection measures, where the Ministry of Agriculture, Fisheries and Food finds that access is, or liable to be, damaging to the purposes of the scheme.").
The noble Duke said: My Lords, I listened with great interest to the previous debate. It seems that the noble Lord, Lord Hardy of Wath, and I are approaching a similar problem, but for different reasons. I must first declare an interest as a farmer who, for the past four years, has benefited from one of the earliest agri-environmental schemes.
I am afraid that there was a slight difficulty in compiling the Marshalled List. Last night, I asked for the term "agri-environmental" to be introduced into the amendment. As a result of some strange state of confusion, the term was not actually included. My amendment should include not merely "environmental", but "agri-environmental" in order to focus it more closely.
These schemes enable the Government to give financial assistance to farmers for the management and improvement of areas in natural and environmental terms. They can be of particular assistance to organic growers. These can be old hay meadows or downland, heather, hedgerows, water-meadows, sand dunes, and so on. The regulations governing the schemes sometimes include a requirement for the exclusion of livestock at certain times of the year. The schemes also give assistance in the maintenance of walls and hedges.
Any farmer entering into one of these schemes has to sign up to a management agreement which, in most cases, can be for 10 years. During that time he will receive the appropriate annual payments, which are generally in the region of £2,000 to £5,000 per annum. Both the farmer and his successors are bound by the agreement.
Quite a number of farmers are glad that their land is not included in a nature reserve; they find that that restricts their activities in ways that they may not fully appreciate. But at the same time, they do not have the safeguards, referred to by the Minister, which are
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available to people whose land is in a nature reserve for the control of the public when a conservation issue arises.
The legal basis of the scheme is laid out in a statutory instrument—the Countryside Stewardship Regulations 1998. The problem that my amendment attempts to address is that, if a farmer is in breach of any of the conditions subject to which the grant was made, the Minister is liable not just to withhold future grant but to recover any grant already paid to him, with a possible penalty of 10 per cent over and above that sum. If access has had a detrimental effect on the conditions laid down in the management agreement—and that may only be discovered, say, six years after the scheme was put in place—the amount that could be reclaimed could total £33,000.
Access may damage some of the primary purposes of the scheme, but many of the secondary purposes are aimed at the encouragement of wildlife and rare species of plants and insects. Access could also have an effect in that area. The noble Lord, Lord Hardy of Wath, referred to the problems that can arise from access within nature reserves. In these areas, the situation might be the same. At present, the farming press speaks of the amazing recovery of the stone curlew in East Anglia due to improved farming practices. It would be a great pity if any of that benefit, which involves public investment, were lost. The other aspect is that the MAFF may want to take this loss of benefit into the argument of eligibility for grants, especially when considering new applicants. I beg to move.
The Deputy Speaker (Lord Ampthill): My Lords, I should point out to the House that the word, or half-word, "agri-" should be added to the beginning of the word "environmental" in line 2 of this amendment.
The Earl of Caithness: My Lords, with this amendment we return to the question of balance within the countryside. I believe that existing management agreements could be put in jeopardy and penalty clauses invoked as a result of this Bill, which would be detrimental to the conservation aspects of the agri-environment and country stewardship schemes. Therefore, in my view, it is totally wrong for one department within government to be encouraging farmers to go in one direction, while the DETR will, with this Bill, be quite unintentionally undermining the efforts of MAFF to encourage farmers to improve their farming practices and adopt more conservation-oriented ways of carrying out their work. Those are the reasons behind my support for my noble friend and this amendment.
Baroness Miller of Chilthorne Domer: My Lords, as a result of this Bill reaching the statute book, I hope that MAFF will take an overall look at the way that its schemes and regulations impact on farmers and consider how that ties in with this legislation. Previous speakers have made some interesting points. In Committee, I raised the point several times that the new hill farm allowance scheme has no provision for

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taking into account the forthcoming impact that open access will have. Indeed, it is not even mentioned in the criteria. Therefore, I add a plea from these Benches that MAFF should be asked to consider the impact of this Bill. It should also give some thought to the way that its schemes and grants tie in with the kind of objectives that we are working towards under this legislation.
Lord Roberts of Conwy: My Lords, I wish also to support this amendment, which I believe to be of tremendous importance. It is of particular importance to Wales because we have what is known as the tir cymen scheme, which is similar but rather better, so I am told, than the stewardship scheme. It is run by the Countryside Council for Wales. Therefore, one assumes that the council would have a power to exclude any land that is under a management scheme, if it thought that the conditions would be vitiated by its declaration as "open access land".
I stress the importance of this matter because the these management schemes are becoming a vital source of income, especially for hill farmers. We are aware of what the average farm income is in England—I believe that it is about £10,000 a year—but it is £5,000 and decreasing in Wales. Therefore, such management schemes are very popular with the farming community because they make a substantial contribution to farm incomes.
Lord Glentoran: My Lords, I rise to express my support for my noble friend's amendment. We have had a number of discussions on this matter, which clearly show that the impact of this Bill will cross departmental boundaries on many fronts. I believe that the issue now before us highlights the situation because of the sensitivity of the agricultural industry at present. I look forward to hearing some reassurance from either the noble Baroness or the noble Lord that they can really turn on some joined-up government.
Baroness Farrington of Ribbleton: My Lords, I can reassure the noble Lord, Lord Glentoran, that there will of course be joined-up government; indeed, it is a fundamental part of the Government's approach to all parts of this Bill.
I should like also to reassure all speakers in the debate that Chapter II of the Bill already makes full provision for the exclusion or restriction of access where that is necessary in the interests of land management or conservation. All the examples that have been referred to would fall within that category, were that to be the case. Therefore, it is extremely important for me to reassure noble Lords that there are already sufficient mechanisms in place in the Bill to protect the interests of countryside stewardship sites, as for any other land.
It is inconceivable that a farmer would be held liable for any breach of an agri-environmental agreement, if the breach arose as a result of access. However, as I said, the mechanisms exist within the Bill to ensure that such schemes will not be put at risk in the first instance because of access. I agree with those who have
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spoken in this debate that the existence of such schemes is very important in many areas, especially in the north of England and in Wales. They are also crucial to the objective of protecting the countryside. With those reassurances, I hope that the noble Duke will not find it necessary to press his amendment. I can assure him that we are fully aware of the importance of the subject to which he spoke.
The Earl of Caithness: My Lords, I was most interested in the noble Baroness's response. I believe that I am reassured. However, before she concludes, can she confirm that, if I were an owner of land—which I am not—that was subject to a stewardship scheme, I could approach the Countryside Agency, tell the officials that the land was under such a scheme, show them a map and then it would automatically become excluded land?
Baroness Farrington of Ribbleton: My Lords, I am sure that the noble Earl does not expect my answer to be "yes" to that question. However, the answer would be "yes" in circumstances where either the interests of land management or conservation interests were best served by such an exclusion. It is not automatically the case. But, quite clearly, many of the situations to which other noble Lords referred would be very relevant in terms of conservation. I repeat: it is not automatic.
The Duke of Montrose: My Lords, I was extremely interested to hear what the noble Baroness said in her response. I was similarly interested in the various aspects of conservation that were mentioned by other noble Lords. However, I am left with this question. If the farmer sees deterioration taking place, will it be his responsibility to approach the body concerned? I am not quite sure which body he would have to approach—for example, whether it would be the Countryside Agency, or whoever—in order to get an exclusion order implemented. It may well become the responsibility of the farmer, but the point here is to stop the access before the deterioration goes too far. Nevertheless, in view of the assurances given by the noble Baroness, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 17:
Page 64, line 15, at end insert—
("13. Land which is habitually used for the training of racehorses is not to be treated by virtue of paragraph 9A as excepted land except—

(a) between dawn and midday on any day, and

(b) at any other time when it is in use for that purpose.").

On Question, amendment agreed to.
6 p.m.
Clause 2 [Rights of public in relation to access land]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 18:
Page 2, line 28, at end insert (", and
(c) he observes the byelaws which the access authority shall prescribe").
The noble Earl said: My Lords, this matter was discussed in Committee but perhaps not in the detail that it should have been. At that stage we went off on a slight tangent as I believe that the Government misunderstood the purpose of the amendment.
I fully accept that the breaking of a by-law is a criminal offence. However, by-laws must be in place. That is the whole nub of my amendment which is pivotal on the word "shall". The Minister has already said this afternoon that the Government require flexibility. However, by-laws must be in place to make the Bill workable. If that flexibility is not backed up by by-laws, I fear that the Bill will be unworkable as the provisions in each area will be different.
Unless by-laws are in place and criminal proceedings can be invoked when they are transgressed, the Bill will become unworkable. That is what we all dread; it is not the purpose of the exercise. The amendment clarifies the situation and allows the Government the flexibility they seek but asks the appropriate bodies to put by-laws in place to back up that flexibility. I beg to move.
Baroness Farrington of Ribbleton: My Lords, I am sorry that in Committee the noble Earl did not obtain the response he wanted. He makes an unusual request in asking for by-laws to be established in every area. The value of by-laws lies in their ability to respond to particular local circumstances. It is unusual to seek to impose a network of by-laws. People may consider that by-laws are not needed in certain areas. Where bylaws are put in place by the access authority under Clause 17, it will be a criminal offence to breach them, as the noble Earl recognises. A fine of up to £500 may be imposed.
The effect of Clause 2(1) and paragraph 1(d) of Schedule 2 is that any person who commits a criminal offence is not entitled to exercise the statutory right of access. Those exercising the right of access must comply with any by-law in order to retain that right. It is not logical for us to seek to impose by-laws unilaterally and uniformly, whatever the local circumstances. I hope that the noble Earl will not press the amendment.
The Earl of Caithness: My Lords, the whole point of by-laws is that they are not uniform. They cannot be imposed uniformly across the country. The Government appear to have given access authorities flexibility in these matters. However, unless that is backed up by by-laws, the Bill will be unworkable in many areas. If access authorities do not establish bylaws, the Bill will be unintelligible, unworkable and will lead to division in the countryside. The Government are making a rod for their own back on this issue. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 19:
Page 2, line 30, at end insert—
("( ) Save as hereinafter provided, a person is not entitled to enter on access land during the night or to remain on access land during the night unless prevented from leaving it by unforeseen circumstances.
( ) If, after proper consultation, it appears to the appropriate countryside body that certain access land is suitable for access at night, it may determine that such land is open for access at night, and any such determination may impose such limitations or conditions as to access at night as appear to it to be appropriate.").
The noble Viscount said: My Lords, in moving Amendment No. 19, I wish to speak also to Amendment No. 28, both of which stand in my name. The noble Baroness, Lady Byford, has kindly added her name to Amendment No. 19. The amendments deal with the vexed question of night access. I hope that they provide a compromise solution which will resolve this knotty problem.
Amendment No. 28 provides a definition of "night" which would be helpful to those seeking night access. The amendment states:
"'night' means the period from one hour after sunset to one hour before sunrise on the following day".
The amendment would allow people to view sunset and sunrise.
Amendment No. 19 forbids people to enter access land at night; it requires them to leave it before night falls. However, it makes express provision for those who are delayed in leaving the land by unforeseen circumstances. They do not commit the offence of trespass if, for example, they become lost, fog descends or they are hurt. That deals with the concern expressed in Committee by the noble Lord, Lord Dubs, and others that if fog descended or conditions deteriorated people might expose themselves to danger trying to leave the land come what may when it would be much more sensible for them to "hunker down" and wait for the fog to clear.
Lord Dubs: My Lords, I thank the noble Viscount for giving way. Would his amendment alter the position in those areas where there is existing access at night, for example in the Lake District? Would the amendment take away that right?
Viscount Bledisloe: My Lords, I take nothing away. I do not think that the Bill takes anything away; it merely states that under its terms access will be subject to certain provisos. It does not say anything about existing rights of access. To put at rest another concern that has been expressed, it does not in any way take away the power of a landowner to allow access, as many frequently do, particularly where the access has been sought by an organised body.
Under the terms of the amendment, with the exception of the person who is delayed by unforeseen circumstances, normally—I stress the word "normally"—there will be no right of access to the land between one hour after sunset and one hour before sunrise on the following day. That approach stems from the view expressed by many in Committee that there is generally no need for access to roam at night

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as opposed to access to footpaths at night. If and in so far as there is a desire to roam at night on the part of a limited number of people, the value of that desire is greatly outweighed by the manifest problems which night access can engender. Many mentioned those problems in Committee and may, no doubt, repeat them. They include disturbance to wildlife and stock—the noble Viscount, Lord Brookeborough, mentioned that—fear engendered in those who occupy the land by people roaming around; the opportunities it creates for crime; the difficulty posed for those responsible for the land in knowing whether a person on the land at night is genuinely and honestly exercising his access right or has a more evil intent; and the interruption to legitimate night activities such as lamping for foxes. That is the basic premise of the amendment. However, it recognises that there may be land where those problems do not apply to which night access can be allowed safely and properly. It provides that after due consultation the appropriate countryside body can decide to allow night access to specific land. It can do so absolutely, or subject to certain restrictions or conditions—for example, restriction to a particular time of the year.
Thus for night access the presumption of the remainder of the Bill would be altered. Instead of access being allowed with the authority having power to exclude it in certain circumstances, the amendment provides that night access would normally not be allowed but the authority would have power to allow it where it believed that danger or problems would not arise. This in no way infringes on the fact that owners can give permission. They often do so when night access is by an organised body.
I hope that the amendment is a genuine, reasonable compromise which reconciles this difficult conflict. Unless that conflict is resolved by a provision such as this, it will be a major cause of friction, trouble and unhappiness and do much to damage the otherwise admirable principles of the Bill. I beg to move.
6.15 p.m.
Baroness Byford: My Lords, I have put my name to the amendment. We spent many a long hour in Committee debating the reasons that night-time access should not be allowed. The noble Viscount refers again to the issue. I shall not delay the House by going through those reasons in detail. The noble Viscount, Lord Brookeborough, was not with us in Committee. He highlighted some of the difficulties of allowing night-time access.
We are referring to access land. Access to rights of way at night time will still exist. If night-time access is allowed, people who live in remote areas will not know which individuals they can challenge. If night-time access is with the agreement of the landowner, their fear is reduced. If permission has not been given, there is a good chance that people who are present at night should not be there. Foggy conditions and so on would have to be taken into account. In those circumstances, those in rural areas would feel greater security.
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I refer also to the safety and security of people out at night. Much of the land that they will visit is unsafe at night. Mapping will identify areas of bog but the situation at night is difficult. I am sure that noble Lords will have helped people who have got into difficulty at night. There is the very real problem of the safety and security of those people.
We are talking about the principle of night-time access. We have to balance the safety and security of the people living in these areas—they know whether people should or should not be present at night—with the desire of those who wish to wander. In Committee, noble Lords understood that balance but pointed out that if individuals have a right to go out at night they know that they may get into difficulty and require help. That right has to be balanced against the realistic problems of those who live in the area. Crime in rural areas is still a great and increasing problem. Unfortunately the quick emergency response for those living nearer towns is not available.
We debated the issue at great length in Committee. I hope that the Minister has been able to consider the arguments put forward. Noble Lords have argued that the individual night-time walker or rambler knows the risks that he runs. But is the right to take that risk greater than the right to safety and security for those who live and work in the area? That is the difficulty the House has to decide.
The noble Viscount referred to land management and the control of foxes. They are often lamped at night. It would be most unfortunate if people became involved in such a situation unwittingly.
I shall not go into other issues raised in Committee; other noble Lords may wish to do so. I recognise that night-time access will give pleasure to some people who wish to wander off rights of way. The amendment does not affect the individual's ability to enjoy night-time access on rights of way. I hope that the House will achieve a balance between the safety and security of people and the conservation of wildlife. I am happy to support the amendment.
Baroness Nicol: My Lords, before the noble Baroness sits down, perhaps I may draw noble Lords' attention to the Companion—we have all received recently a beautiful new copy—which states that,
"Arguments fully deployed in Committee of the Whole House should not be repeated at length on report".
The patience of the House may well be tried if every noble Lord who speaks goes over the same arguments again. So far I have not heard a single new argument.
Lord Hardy of Wath: My Lords, I hope that my noble friend will think that I offer a new point. I was unable to take part in the debate in Committee. I am interested in the issue. It is inevitable; for a long time I represented a county constituency with 246 farms within it. There is anxiety. I hope that we shall achieve a balance.
One slight inconsistency puzzles me. Perhaps the Minister will explain it. On the one hand we are keen to see the protection of ground-nesting birds by banning

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dogs from March to August. I do not complain about that. On the other hand, we are prepared to see humans going way off the footpaths, probably disturbing ground-nesting birds. From my observations of the species, the bird that is disturbed during the day is likely to return to the nest more quickly than the bird disturbed at night. I should be grateful if my noble friend will explain the inconsistency.
Lord Northbourne: My Lords, I refer to an issue which I do not believe has been mentioned—the danger of arson. When the hay has been cut in the summer, it is common practice to take it by tractor or trailer, when the ground is hard, to the hill to store. I have a small, remote Dutch barn full of hay that has been torched three times over the years. It has been burnt down, rebuilt with the insurance money, burnt down again and rebuilt again with money that was rather more reluctantly provided by the insurance company. There is always a danger of arson with remote farm buildings. If there is no Lebensraum or protective area around farm buildings—I think that I heard the Minister say on the previous amendment that that will apply only to residential buildings—there will be a danger of buildings being torched.
Lord Waddington: My Lords, I shall not detain the House for long. I was not here during Committee stage and I realise that the House would lose its patience with me if I was other than very brief. However, I should like to contribute to the debate because so many people have shared with me their concerns about night-time access.
There is enormous concern in the countryside about crime. It will be unfortunate if we finish up with a Bill that does not fully take into consideration the concerns of people who live in the countryside. It has been regularly pointed out that we need to strike a balance so that the end product is largely acceptable to country dwellers.
If it is thought that night-time access will have comparatively little effect, because not many people will exercise the right to roam about at night, I wonder why we are going to all this trouble and causing so much concern in the countryside about it. If, on the other hand, the Bill's effects are going to be potent, we have to consider the wellbeing of people living in isolated homes in the countryside near access land. What about their peace of mind when they see lights at night in the open countryside close to their home, or when they hear people not far from their home? The police will not come, because they will feel that it would be a waste of time. Some have argued that burglars might be deterred from going on access land by the prospect of coming into contact with people who are exercising their right of access, but if the householders go out to see what is going on, ramblers and burglars alike will give the same response—that they are simply exercising their right of access.
Some say that it would be difficult to enforce a ban on access at night, but at least the householder would be able to take some action if he saw or heard someone
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lurking around by his home. He would be able to go out and challenge that person and tell them to clear off. He could also call the police.
Of course we must have proper regard to genuine country lovers. There are plenty of those who would no doubt wish to see the sunrise or the sunset. They are catered for by the amendment. There is no reason for access not to be granted during the hour after sunset and the hour before dawn. I cannot for the life of me understand why those who want to see the night sky cannot do so from the very extensive network of footpaths that runs through almost the entire country.
I am not exaggerating the concerns of people who live in the countryside. I hope that the Government will bear in mind their fears that they will not be able to take proper action or get the police to do so if they are worried by the sight or sound of people moving around near to their home.
Baroness Farrington of Ribbleton: My Lords, before other noble Lords speak, I remind the House of the words from the Companion, quoted by my noble friend Lady Nicol. I think that those on both sides who were unable to be present in Committee have allowed me to be even-handed in saying that a little element of repetition of earlier arguments is now occurring.
Viscount Bledisloe: My Lords, surely the point made in the Companion relates to a topic that has already been debated. We are considering an entirely new proposition. We have never debated a system of discretion under which night access was forbidden in some places and allowed in others. It would be highly undesirable to try to shut out debate on the issue.
Baroness Farrington of Ribbleton: My Lords, I am not seeking to shut out debate. I assure the noble Viscount that the issue of perceived problems with night access was thoroughly debated in Committee.
Lord Dubs: My Lords, the last thing that I want to do is run foul of my Whip, so I shall be very brief. None of the speeches in support of the amendment, or similar amendments in Committee, has answered one simple question: in those parts of the country where night access is permitted, such as the Lake District, are the problems that they have mentioned manifest? I submit that they are not. Until those who support the amendment have demonstrated that night access does not work or that it causes the enormous harm that they claim, their case falls.
Lord Northbourne: My Lords, am I not correct in believing that in areas such as the Lake District, where there is night access, there is an efficient warden system?
Lord Dubs: My Lords, there is an efficient warden system, but I have seldom seen the wardens about, and certainly not as it gets dark. If night wardens were the answer, the Government could have suggested that solution.

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The noble Viscount, Lord Bledisloe, talked about friction, trouble and unhappiness. I submit that there is no clear evidence that any of those problems will be caused.
To answer the point made by the noble Lord, Lord Waddington, my experience is that nearly all the isolated farmhouses in the areas to which the amendment might apply have guard dogs, which draw attention to any walker or other person in the vicinity long before any farmer or resident notices.
Of course the issue is not clear cut and it might be necessary to restrict access in some circumstances, but the amendment is the wrong way round. The normal presumption should be that night access should be permitted, except in certain areas where there are good local arguments against it.
6.30 p.m.
Lord Greaves: My Lords, I recognise that the noble Viscount, Lord Bledisloe, has produced a new proposition and in so far as it is different from what we have considered before, it is worth debating. For the reasons that the noble Lord, Lord Dubs, has just given, the noble Viscount has it the wrong way round and the Bill has it the right way round. The normal principle in this country is that if people have liberties, they apply in all cases except when it is thought necessary to remove them in the interests of the general public or of individuals. The noble Viscount seems to propose that the liberty to walk on access land at night should not exist except in certain circumstances when it is thought desirable. That is the wrong way round. The Bill provides an opportunity to deal with problems when they arise.
The noble Viscount said that there was no need to roam at night. Of course, there is no need for any of us ever to go on mountains, moorland or wherever else we go. The noble Lord, Lord Northbourne, may tell us that there is a need because it is necessary for us all to keep fit. However, I believe that that is the only evidence of need to have been produced in these debates. We are discussing whether people should have a new right—some might say an historic right restored—to walk on land which will be declared as access land. For the reasons which we debated at great length in Committee, that right should exist.
At the risk of upsetting the noble Baroness, Lady Nicol, and the Whip, I want to revisit one or two matters that we discussed in Committee. I have considered carefully whether some of the things that were said in Committee should cause me to change my mind. I have looked at the matter in two ways.
First, I have considered whether we should return to the arguments that were advanced against those that I and other noble Lords put forward. The fundamental argument which we used and which has been put forward again by the noble Lord, Lord Dubs, is that the people who propose change are those, including noble Lords here, who argue for night-time restrictions. In Committee we argued that wherever access is allowed, whether by rights of access in countries such as Norway, Sweden and Germany on
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what we would consider to be moorland mountain and not the flatlands of Denmark, or in this country, whether in the Lake District under other legislation or whether by what I believe the noble Lord, Lord Marlesford, described as "access by silent consent"— a very good phrase—then no distinction is made between day and night. We advanced that argument and listened carefully for reasons why that basic principle should be changed. However, I have not heard anything which convinces me to change my mind.
I listened carefully in Committee to the arguments put forward by the noble Earl, Lord Peel. He explained why, for example, it was bad to allow people on to moorland at night. His reasons related to crime and poaching and the fact that people would get up to no good. If I have understood the arguments correctly, I believe that the first has been dismissed as being fatuous; that is, that removing the fact of trespass will encourage people to go on to land and that a right of access will encourage criminals to go on to land. That is nonsense.
Secondly, the idea that criminals—
Baroness Strange: My Lords, before the noble Lord sits down, I have heard all his arguments before. Do we have to hear them again?
Lord Greaves: My Lords, I understand the noble Baroness's point. I shall now be as brief as I can. I believe that we must explain why we do not accept the arguments that have been put forward. That seems to me to be our duty.
The second argument put forward by noble Lords— I refer in particular to a speech made by the noble Earl—was that such a proposal would make it impossible to challenge people who went on to land. That view has been advanced again this afternoon. I do not believe that that is right. One may believe that a person is up to no good in any place—it does not have to be on access land. If one sees a person outside one's house and believes that he will break in or burgle the house, the fact that he is in the street—a highway— does not mean that he cannot be challenged. Therefore, the argument that people cannot be challenged does not wash.
The third argument put forward by the noble Earl and by other noble Lords was that one may be in a farmhouse or a cottage and see lights on a hill. If no access is allowed, one can assume that the people on the hill are up to no good or, at least, trespassing. If access is allowed, it will be difficult to come to that conclusion. I have thought hard about that scenario. Such a situation appears to present a much more serious argument, although I do not believe it to be an overriding one.
If one sees people on a hill, whether it is during the daytime when they can be seen individually or whether at night when it may be possible to see only their lights, in most cases the pattern of their movement will help to inform what they are doing. If two or three ramblers are walking across a hill or people are climbing on a

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local crag, the pattern of their movement will be quite different from that of people rounding up sheep when they should not be doing so. I believe that common sense suggests that in most cases a person who sees people on a hill in those circumstances will have a good idea as to whether they are—
Baroness Strange: My Lords, I beg to move that the noble Lord be no longer heard.
On Question, Whether the noble Lord be no longer heard.
The Deputy Speaker: My Lords, as many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it.
On Question, Motion negatived.
Lord Greaves: My Lords, I shall now be very brief. The noble Baroness intervened when I had virtually finished. My final point is simply that, of all the amendments to have been tabled, I believe that this one attempts to wreck the Bill, to wreck everything that it stands for and to wreck the principles behind it. I hope that the House will reject it.
Baroness Byford: My Lords, before the noble Lord sits down, I object to his last comment and ask him to withdraw it. There is no question of our trying to wreck the Bill. In fact, if we were more constructive, we should get through the Bill more quickly. I ask the noble Lord to withdraw.
Lord Greaves: My Lords, I shall repeat rather more carefully what I said previously. It is my view that, if this amendment were passed, it would wreck the principles and practice behind Part I of the Bill.
Baroness Carnegy of Lour: My Lords, the rules of this House matter considerably and I shall certainly stick to them. I simply want to say that I have had the same experience as the noble Lord, Lord Northbourne. I believe that people are more frightened by this part of the Bill than by any other. It concerns potential arson and I believe that the Government should pay attention to that.
Viscount Brookeborough: My Lords, I rise to support this amendment because of its flexibility. First, the noble Lord, Lord Dubs, mentioned that there did not appear to be many complaints as a result of night-time rambling in the Lake District. I do not believe that we are comparing like with like. The Lake District is a largely uninhabited area in the uplands. People who go there go properly equipped and are used to walking in such areas. In this Bill we are discussing land which is much closer to populated areas. Such land would be more accessible to the casual walker who may interfere with what goes on in the countryside.
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My second point is that earlier, when I ventured into the night-time argument, the Minister suggested that no single buildings housing animals existed without habitation being close by. That is simply not true. In marginal farming areas many people live away from their farm buildings with their animals. We are not necessarily discussing a farmyard scenario. The fact that such farmers may keep dogs to guard them makes it even more dangerous for people to go there at night. I suggest that problems would arise in relation to people being bitten.
Thirdly, because such farms are isolated, people often surround them with electric fences so that, if animals break out of the buildings in which they are kept, they will not venture further. Some electric fences are now powerful and supplied by the mains. They cannot be shorted so easily when farmers are not able to inspect them at every minute of the day. It can be quite frightening to come up against such a fence. I have done so at night and have floundered around a field, getting electrocuted in every corner. It is not a funny experience. I suggest that there is no reason to allow that type of situation to occur.
Earl Russell: My Lords, I wish to make two points very briefly. First, as one who is not immune to impatience, perhaps I may say that I have learnt—and the bite marks where I have bitten my lip bear me witness —that the times when we find it most hard to listen are those when it is most important that we should do so.
Secondly, I wish to put a question to the movers of this amendment which is asked in a spirit of genuine curiosity. How would the amendment impact on people in the position in which I was placed; that is, I was walking on the hills late in the afternoon when I sprained my ankle and was unable to make my way down before dark?
Lord Willoughby De Broke: My Lords, I intervene on behalf of the noble Viscount, Lord Bledisloe. His amendment specifically addresses the question of someone who is inadvertently unable to come down from the hill or the access area at the right time.
Earl Peel: My Lords, I should like to address briefly the points made by the noble Lord, Lord Dubs. He raised some interesting issues. We must remember that at the moment night-time access is precluded unless on footpaths. Any night-time access that has occurred in the Lake District has occurred through negotiations between those who wish to exercise that night-time access and the owners of the land. There is a world of difference between negotiated access and access that is to be provided through this legislation.
Lord Dubs: I do not wish to prolong this debate, but I am certainly unaware that there is any need to negotiate night-time access. I have never heard of that.
Earl Peel: My Lords, there may be de facto access. The situation still arises that that is done with the tacit permission of the owner or the occupier. This is an exceptionally important point.

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The reason I support the amendment of the noble Viscount, Lord Bledisloe, is because it deals with all the points raised in Committee. It introduces flexibility and consultation. It allows the access authority to decide whether or not the land is appropriate for access. As such, it overcomes many of the difficulties and problems raised in Committee.
I am not going to answer the noble Lord, Lord Greaves, who seemed to go through my speech in Committee rather carefully. I should like to make one point; that is, we must not lose sight of those people who manage the land we enjoy—the farmers, shepherds and gamekeepers. They work all hours to produce a landscape that everyone in this country appreciates. Are they now to be expected to be responsible for access at night as well as during the day? We are putting a tremendous onus upon them, and it is highly irresponsible to do so.
Baroness Miller of Chilthorne Domer: My Lords, it is clear from this amendment that it is more thoughtful than the amendments we discussed in Committee. As the noble l3aroness, Lady Byford, said, it is an amendment about the principle of night access. Although it addresses some of the issues that caused concern in Committee, it is a matter of principle.
Noble Lords have clearly made the point that there is another option that would address the issues of wildlife and crime; namely, to close those areas of land where there are continual problems or there is a danger of unreasonable disturbance to wildlife.
Since Committee stage I have had many communications from a number of people, as has the noble Lord, Lord Waddington, but in a different vein. My communications were from people who shared with me their anger at being regarded as potential criminals. This debate divides us into two categories. There are those who fear the dark, quite understandably. Bad things happen at night. Overwhelmingly, there are also those who take pleasure in activities that can happen in the dark on open access land.
My point is that we should not confuse crime and the fear of crime, which is very real and which many people experience, with the fact that, if people do legitimate things they enjoy at night, it does not make them more likely to be criminals and it does not address the difficulty of the real criminals.
The bottom line with this principle is that it is basically unenforceable. I do not believe that the police will back a ban on night-time access. In the last resort it is the police who must enforce the law. If it proves to be unenforceable it will detract from their ability to deal with the very real crime in rural hamlets, villages and market towns, something they are finding difficult to do at the moment.
We believe that these amendments that seek to prohibit night-time access will not work. We will not support them.
6.45 p.m.
Lord Judd: My Lords, would the noble Baroness, Lady Miller, acknowledge that the Association of Chief Police Officers has gone on record as saying that a general curfew would be unenforceable and would not enjoy public support? It would be putting an immense responsibility on the police that they believe they cannot discharge.
Baroness Miller of Chilthorne: My Lords, I believe it was the noble Baroness, Lady Nicol, who raised that point in Committee and put it on record.
Baroness Gale: My Lords, I speak against Amendments Nos. 19 and 28. Much has been said about access at night. The ban on access at night—if these amendments were carried—would reduce the access currently available and being used by many individuals and organisations. Bodies that allow access at night have not experienced any significant problems. The Bill already provides for closures and restrictions to be made on a local basis or for by-laws to be introduced where there is shown to be a problem with access at night.
Many people gain great pleasure from walking whether it be at night time or day time. If they wish to walk at night, why should that be denied? How would this ban be enforced? I believe that a ban on night access would be unenforceable.
Most people who enjoy walking are responsible people. They care about the countryside. So why would they not use the same responsibility at night? The risks of walking at night, falling down crevices and numerous other risks, were spoken about earlier. Those who walk are generally responsible. They take those risks into account and do not walk in dangerous areas.
There are already laws to deal with those who intend to carry out illegal activities at night,.
As the Bill stands, it provides for night access and safeguards should any problems arise. Where there are safeguards people should be allowed access —day or night—to enjoy fully the pleasures of walking. It would take away the spirit of this Bill if these amendments were carried.
Lord Whitty: My Lords, we have had a long debate on this issue as we did in Committee. The noble Viscount claimed that this was a reasonable compromise. I do not believe that it is a reasonable compromise. It effectively provides a blanket presumption that there will be no access at night. As the noble Lord, Lord Greaves, said, that severely restricts the right to access.
We have considered many of the issues raised in Committee, some of which were repeated here.
The arguments have hardly been put on behalf of those who would enjoy this access, for those engaged in hill walking and climbing for which night access is an integral part of their whole occupation and it goes right through to those who wish simply to observe the sunrise or sunset. In that context, it would take me

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longer than an hour to reach the top of a hill or mountain in order to observe sunrise or sunset. Therefore, we need some considerable additional periods even for that.
Beyond that, education and training establishments attach great importance to training at night time. The British Mountaineering Council advises that it is essential for leaders and individual members to have night time experience. Much of the training undertaken by the Mountain Rescue Service, referred to in Committee, is conducted at night. It is strongly in favour of not having a restriction at night.
English Nature has advised that there is no general concern over access during the hours of darkness. Many groups of naturalists require access at night in order to observe nocturnal animals and insects. Those people have special interests but they are exactly the kind of special interests to which the right of access should apply. They may not amount to very many people in total but they are important groups of people and the very fact that they may not amount to many people means that many of the fears and anxieties reflected in the debate are invalid. We are not talking about hordes of people crossing the countryside at night. We are talking about people enjoying the right of access for very specific purposes.
Very few will want to walk beyond the paths and tracks but there are some people who do. We have experience of these matters, and several noble Lords have referred to it. There are vast areas of the countryside where access by night exists at present—on Forestry Commission land, National Trust land and the Lake District to which my noble friend Lord Dubs referred. There is a wide variety of different types of land with different levels of population density and so on.
In all those areas, there has been no serious problem. Indeed, as my noble friend Lord Dubs said, in the Lake District, there are 1,000 square kilometres of open land where there are already statutory access rights 24 hours, day and night. We have not heard one single example of how that existing access has given rise to the kind of problems which have been raised today.
Lord Cavendish of Furness: My Lords, I live in the Lake District and last night, my quad bike was stolen from outside my front door.
Lord Whitty: My Lords, under the amendment that we have just passed, nobody could get close to the noble Lord's front door to steal his bike. Access would not apply within 20 metres of his front door.
In those parts of the country, for 75 years or longer, there have been substantial rights of access. In areas such as the Peak District, there has been access at night well beyond the rights of way. I do not believe that the noble Earl, Lord Peel, is correct in his references to the Lake District. Access rights in the Lake District do not have to be negotiable and they are not restricted to
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rights of way. That situation has existed in the Peak District for 50 years and no necessity has been seen for night wardening.
Earl Peel: My Lords, I was not suggesting that for one moment. I was saying that where access has been negotiated on open land away from footpaths, that has been done through the local access authority or through groups of people in conjunction with the owner or occupier so everybody knows what is going on. There is a world of difference between the two.
Lord Whitty: My Lords, I do not believe that that represents the position in the Lake District although there is a great deal of co-operation and understanding there. That underlines the point that if effective access management exists, there are relatively few problems.
The noble Earl referred to Denmark. I shall refer to Germany, Sweden and Norway where access by night is not restricted.
As was said earlier, those who are likely to take advantage of the rights of access somewhat resent being regarded as potential criminals. The experience of over half a century does not give any credence to the arguments which have been put forward here today.
The noble Lord, Lord Waddington, referred to rural crime. Crime in countryside areas is largely committed against people who live in villages or small towns where the right of access, the right of way—a pavement or a road or a lane—comes close to the property. That is where the bulk of rural crime takes place. In any event, the figures for rural crime are diminishing, rather than as has been alleged in the House this afternoon.
Those who carry out crime do not need the cover of access rights. Almost by definition, a burglar is a person who does not observe access rights in any event. Arsonists are in the same category. Noble Lords have told the House of incidents of arson which are regrettable, as was the case of the theft of the noble Lord's mountain bike, about which I should have commiserated with him. But those arsonists do not require the cover of access rights in order to carry out their crimes. And they are crimes and they will continue to be so. Rustlers and poachers have, from time immemorial, carried out their crimes in the countryside without any rights of access.
The idea that suddenly giving a right of access means that those crimes will increase seems to me misplaced. Indeed, although I do not make a great point of it, I should say to the noble Lord, Lord Waddington, that, if anything, the fact that more people are around at night may limit that rather than having the opposite effect.
In any event, as I said, we have passed an amendment to provide a 20-metre exclusion zone around dwellings which should give greater security to those who fear the effects of the extension of these rights at night time.
As has been said, it is the case that the police do not regard the exclusion of a right to access during the night to be a sensible move.

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The noble Baroness, Lady Byford, referred to the safety of walkers. I accept that in open and sometimes remote countryside there are dangers, serious dangers. But walkers take those risks, whether by day or night, and they must bear the primary responsibility for their own safety. If somebody does something which is foolhardy, then he must accept the consequences of his actions. That has always been the position under the law and it will continue to be the position after this Bill has passed.
I contend that the case for a blanket national ban on access at night has simply not been made. It would seriously curtail the totality of the right of access. In Committee, the noble Lord, Lord Greaves, referred to 50 per cent. It is slightly less than that but it is a substantial part of the day. That cannot be justified on past experience, on evidence or on an assessment of the kind of people who would make use of that right or on the basis of fear of rural crime.
The noble Baroness was right to say that there must be a balance here but we have already struck that balance in this Bill. This amendment puts the balance the wrong way round. The presumption of the amendment is that night access should be banned, except in those areas where particular circumstances apply. The Bill as it stands would provide for night access, except in those areas where special circumstances arise and that can be dealt with either by exclusion or by by-laws. That seems to me to be sensible. That can deal with areas which are particularly vulnerable or have been subject to serious crime or particularly vulnerable to particular types of crime The Bill provides that flexibility and that is the right way round in this Bill. To turn it on its head and put it the other way round begins to undermine the purpose of the Bill and I do not believe that we can pass the Bill with such a serious restriction on the right which we hope to be giving to the people of this country.
The flexibility in the Bill makes it possible to deal with real problems. The noble Viscount and many of those who have supported him have been dealing with phantom problems. Let us deal with the real problems and provide the flexibility to meet them. But let us not pretend that the access for people who will enjoy nighttime access will cause the kind of problems which have been alluded to by many noble Lords today. I hope that the House will reject the amendment if it is pursued.
Viscount Bledisloe: My Lords, perhaps I may deal with one or two of the points which have been raised. I start by assuring the noble Lord, Lord Greaves, that this amendment is by no means an attempt to wreck this Bill; it is an attempt to find a genuine compromise. I assure the noble Lord that I am a sufficiently experienced draftsman that if I wanted to wreck the Bill, I should find a very much better way of doing it than this.
The substantive point that has been made against the amendment is the point made by the noble Lord, Lord Dubs, that there are areas where night access is presently enjoyed and where these problems do not
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seem to manifest themselves. But it is because the owners of that land did not see that night access was likely to cause them problems in their circumstances that they have allowed night access. It is to land similar to that that the second part of the amendment is intended to apply.
In Committee the noble Lord, Lord Greaves, spoke about walking up Snowdon at night. I fully accept that the Minister could not manage that in an hour. I could not manage it in a great deal longer. It is just such areas, where experience shows that there will not be problems, that are intended to be covered by the second part of the amendment. Where the countryside body sees that there will not be problems because there is no game or wildlife, livestock or remote dwellings, it will allow night access.
There are other areas where there will be birds breeding, livestock, valuable property and remote houses and where problems will not occur. We cannot say that they have not occurred because where night access presently happens, that is allowed by the owner because he does not fear any problems.
The noble Lord, Lord Greaves, advanced the remarkable proposition that the amendment seeks to detract from a liberty. At present, there is no liberty to have access to such land. The Bill confers a new right and it is a purely neutral question of how large that right should be. If I were seeking to deny night access to land where that had existed for many centuries, the noble Lord would have a point.
This must be the first time that the noble Earl, Lord Russell, has ever been caught out by not having read an amendment before the House. The wording expressly states that the individual does not have to leave the land unless he is presented with unforeseen circumstances. The noble Earl's strained ankle would certainly be an unforeseen and unhappy circumstance.
The noble Baroness, Lady Miller, suggested that one is trying to say that the people exercising the right are potential criminals. The amendment's supporters are claiming nothing of the kind. We are stating that potential criminals exist. At the moment, as soon as they are on one's land, one can challenge them and tell them to go away. When the Bill is enacted, one will not be able to challenge such persons until they have done something towards committing a burglary. The Bill gives such persons a disguise, to enable them to get to the point of committing their crime before being under suspicion. One will not know whether someone is a perfectly legitimate walker or a potential criminal. One cannot even challenge them and tell them to go away.
The noble Lord, Lord Judd, said that the police cannot enforce such a provision. Of course they cannot stop any person going on to land at any time. The existing law of trespass cannot be fully enforced. People trespass even though that is not allowed—but as soon as they do, at least one can seek to turn them off. If they trespass persistently, one can ask the police to help. There will be wardens to help. To say that we should allow anything that the police cannot completely prevent is an argument for legalising a

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large number of activities—such as smoking cannabis and speeding. One does not dispense with rules because people will occasionally break them.
The Minister says that my amendment has things the wrong way up, but it does not. Under his system, any owner who fears problems will have to make an application and prove the case—a considerable burden on the owners of small pieces of land or small farms. Under my amendment, the Ramblers' Association or a similar organisation can apply to the Countryside Agency in respect of a whole area suitable for designating for night access. Surely it is more reasonable that the burden should be on them. The problem will not go away and I shall seek the opinion of the House.
7.4 p.m.
On Question, Whether the said amendment (No. 19) shall be agreed to?
Their Lordships divided: Contents, 116; Not-Contents, 155.

Division No. 2

CONTENTS

Allenby of Megiddo, V.

Hanningfield, L.

Ampthill, L.

Hanson, L.

Arran, E.

Hayhoe, L.

Astor of Hever, L.

Henley, L.

Attlee, E.

Higgins, L.

Belstead, L.

Hodgson of Astley Abbotts, L.

Blaker, L.

Hogg, B.

Bledisloe, V. [Teller]

Hooper, B.

Boardman, L.

Howe, E.

Bowness, L.

Hunt of Wirral, L.

Bridgeman, V.

Hylton, L.

Brookeborough, V.

Jellicoe, E.

Brougham and Vaux, L.

Jopling, L.

Buscombe, B.

Kelvedon, L.

Buxton of Alsa, L.

Kimball, L.

Byford, B.

Kingsland, L.

Caithness, E.

Knight of Collingtree, B.

Carlisle of Bucklow, L.

Laing of Dunphail, L.

Carnarvon, E.

Listowel, E.

Carnegy of Lour, B.

Liverpool, E.

Cavendish of Furness, L.

Luke, L. [Teller]

Clark of Kempston, L.

McColl of Dulwich, L.

Colwyn, L.

Mackay of Ardbrecknish, L.

Cope of Berkeley, L.

Mancroft, L.

Cox, B.

Mar, C.

Craigavon, V.

Marlesford, L.

Cranborne, V.

Masham of Ilton, B.

Dean of Harptree, L.

Mayhew of Twysden, L.

Dixon-Smith, L.

Miller of Hendon, B.

Dundee, E.

Monro of Langholm, L.

Elliott of Morpeth, L.

Monson, L.

Elton, L.

Montrose, D.

Rather, B.

Murton of Lindisfarne, L.

Fraser of Carmyllie, L.

Noakes, B.

Freeman, L.

Northbourne, L.

Gardner of Parkes, B.

Northbrook, L.

Garel-Jones, L.

Northesk, E.

Glenarthur, L.

Norton of Louth, L.

Glentoran, L.

O'Cathain, B.

Goschen, V.

Onslow, E.

Griffiths of Fforestfach, L.

Onslow of Woking, L.

Hambro, L.

Palmer, L.

Hanham, B.

Park of Monmouth, B.

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Patten, L.

Skidelsky, L.

Peel, E.

Stodart of Leaston, L.

Pilkington of Oxenford, L.

Strange, B.

Rawlings, B.

Strathclyde, L.

Reay, L.

Swinfen, L.

Renton, L.

Tenby, V.

Renton of Mount Harry, L.

Thomas of Gwydir, L.

Roberts of Conwy, L.

Trefgarne, L.

Rotherwick, L.

Vivian, L.

Seccombe, B.

Waddington, L.

Selborne, E.

Walpole, L.

Selsdon, L.

Weatherill, L.

Sharples, B.

Wilcox, B.

Shaw of Northstead, L.

Willoughby de Broke, L.

Skelmersdale, L

Young, B.

NOT-CONTENTS

Acton, L.

Greengross, B.

Addington, L.

Grenfell, L.

Ahmed, L.

Hamwee, B.

Alderdice, L.

Harris of Greenwich, L.

Alli, L.

Harris of Haringey, L.

Amos, B.

Harris of Richmond, B.

Andrews, B.

Harrison, L.

Archer of Sandwell, L.

Haskel, L.

Ashton of Upholland, B.

Haskins, L.

Bach, L.

Hayman, B.

Barker, B.

Hollis of Heigham, B.

Barnett, L.

Holme of Cheltenham, L.

Bassam of Brighton, L.

Howells of St. Davids, B.

Berkeley, L.

Howie of Troon, L.

Bernstein of Craigweil, L.

Hoyle, L.

Billingham, B.

Hunt of Chesterton, L.

Blackburn, Bp.

Hunt of Kings Heath, L.

Blackstone, B.

Irvine of Lairg, L. (Lord Chancellor)

Blease, L.

Borrie, L.

Islwyn, L.

Bragg, L.

Jacobs, L.

Brennan, L.

Jay of Paddington, B. (Lord Privy Seat)

Brett, L.

Brooke of Alverthorpe, L.

Jenkins of Putney, L.

Brookman, L.

Judd, L.

Burlison, L.

King of West Bromwich, L.

Carter, L. [Teller]

Kirkhill, L.

Clarke of Hampstead, L.

Lea of Crondall, L.

Clement-Jones, L.

Lester of Herne Hill, L.

Clinton-Davis, L.

Lipsey, L.

Cocks of Hartcliffe, L.

Lockwood, B.

Cohen of Pimlico, B.

Lofthouse of Pontefract, L.

Crawley, B.

Ludford, B.

Currie of Marylebone, L.

Macdonald of Tradeston, L.

Davies of Coity, L.

McIntosh of Haringey, L. [Teller]

Desai, L.

Dholakia, L.

McIntosh of Hudnall, B.

Dixon, L.

MacKenzie of Culkein, L.

Dormand of Easington, L.

Mackenzie of Framwellgate, L

Dubs, L.

McNally, L.

Elder, L.

Maddock, B.

Evans of Parkside, L.

Mar and Kellie, E.

Ezra, L.

Massey of Darwen, B.

Falconer of Thoroton, L.

Miller of Chilthorne Domer, B.

Falkland, V.

Molloy, L.

Farrington of Ribbleton, B.

Morgan, L.

Faulkner of Worcester, L.

Nicol, B.

Filkin, L.

Northover, B.

Fyfe of Fairfield, L.

Oakeshott of Seagrove Bay, L.

Gale, B.

Orme, L.

Gibson of Market Rasen, B.

Patel of Blackburn, L.

Goldsmith, L.

Phillips of Sudbury, L.

Goodhart, L.

Plant of Highfield, L.

Gordon of Strathblane, L.

Prys-Davies, L.

Goudie, B.

Ramsay of Cartvale, B.

Gould of Potternewton, B.

Razzal, L.

Graham of Edmonton, L.

Rea, L.

Greaves, L.

Redesdale, L.

1011

Rendell of Babergh, B.

Thomas of Walliswood, B.

Rennard, L.

Thornton, B.

Renwick of Clifton, L.

Tomlinson, L.

Rodgers of Quarry Bank, L.

Tope, L.

Roper, L.

Tordoff, L.

Russell, E.

Turnberg, L.

Sainsbury of Turville, L.

Turner of Camden, B.

Sandberg, L.

Uddin, B.

Sawyer, I.

Varley, L.

Scotland of Asthal, B.

Walker of Doncaster, L.

Scott of Needham Market, B.

Wallace of Saltaire, L.

Serota, B.

Walmsley, B.

Sharp of Guildford, B.

Warner, L.

Shepherd, L.

Warwick of Undercliffe, B.

Shutt of Greetland, L.

Wedderburn of Charlton, L

Simon, V.

Whitty, L.

Smith of Clifton, L.

Wilkins, B.

Stone of Blackheath, L.

Williams of Crosby, B.

Strabolgi, L.

Williams of Mostyn, L.

Symons of Vernham Dean, B.

Woolmer of Leeds, L.

Taylor of Blackburn, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
7.15 p.m.
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 20:
Page 2, line 30, at end insert—
("(2A) An authorised person who believes that any person on access land is or has become a trespasser, or has committed any offence, on that land may require that person to give to him full particulars of his identity.
(2B) Any person failing, without reasonable excuse, to comply with the requirement in subsection (2A) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.").
The noble Lord said: My Lords, this is a less contentious amendment. In moving it, I shall speak also to Amendment No. 29 which, once again, is purely a definition provision. It defines, for the purposes of Amendment No. 20, what is an authorised person.
Amendment No. 20 seeks to deal with what can be done with someone who appears to be breaking the rules on access land. This Bill is full of good intentions and rules governing the behaviour of those who exercise their access rights, but there are virtually no teeth for dealing with them. The amendment is a modest attempt to improve the situation. If an authorised person believes that someone on access land has broken a rule or committed an offence he can demand from that person particulars of his identity and it will be an offence for that person to fail to give such particulars unless he has a reasonable excuse.
Surely it must be right that a warden or an owner or his representative can discover who owns a misbehaving dog or who has damaged his wall. I recognise that the amendment still leaves the problem of what the authorised person can do if an offender refuses to answer. The noble Lord, Lord McIntosh, and I had a discussion in Committee about someone who, when asked to do something, replies with expletives that would be deleted if repeated in the House. That problem will always be there, but this amendment would provide an offence if someone failed to give such particulars.
In Committee I suggested that one should be able to find out who was on access land. That was said to be an infringement of liberties. However, the noble Lord, Lord Whitty, accepted that there might be arguments in relation to someone who had committed an offence or broken the rules.
I hope that the Government recognise that those who need to enforce the rules will need help and that they should therefore accept the amendment. There is no point in having schedules in the Bill full of things that one should not do if nothing can be done effectively about someone who breaks the rules. If it is not possible to find out who the person is, not even the first steps can be taken to do anything about it. I beg to move.
Baroness Byford: My Lords, I support the amendment. Remembering what the noble Baroness said, I shall not cover past ground. However, this is an important amendment. Many noble Lords are concerned that there may be circumstances in which people should be taken to task and there is little enforcement in the Bill. If the amendment is not accepted by the Government, it begs the question: how will sanctions be imposed to obtain a balance between those who are on access land lawfully and those who are not?
Lord Northbourne: My Lords, I support the amendment. It is the crucial amendment of the Bill. If there is no way to enforce the by-laws and the regulations, the Bill is manifestly unfair. I believe that legislation is liable to fail if it is perceived by one party or another to be manifestly unjust. If there is no way of enforcing the rules for the use of access it will be manifestly unjust.
Baroness Hamwee: We on these Benches are unhappy with this amendment. We must be careful when creating new criminal offences. I draw the distinction between a criminal offence, which this amendment seeks to include in the Bill, and the position under the civil law between different parties. The two amendments together, particularly given the criminal nature of subsection (2B) as proposed, would amount to creating a police force or possibly an excuse for vigilantes from which I am sure noble Lords would want to distance themselves. I take some of the points made by the noble Viscount, Lord Bledisloe, about seeking a balance and avoiding confrontation rather than encouraging it. I fear, however, that the amendment might have the contrary effect and we cannot support it.
Lord Jopling: My Lords, before the noble Baroness sits down, will she be kind enough to answer the points made by the noble Viscount, Lord Bledisloe? How would she deal with the situation in which an authorised person had found someone on his land who was a trespasser or who had committed an offence? How can the authorised person do something about

1013
that? It is not good enough for the noble Baroness to say, "We don't like it". She must tell the House how she and her party would deal with such a situation.
Baroness Hamwee: My Lords, I drew a clear distinction between the criminal and civil situation. I believe that this situation is no different from someone living in an urban area finding a trespasser in the garden.
Baroness Farrington of Ribbleton: My Lords, perhaps I may place on record the fact that at no stage have I criticised the noble Baroness, Lady Byford, who has not repeated herself—unlike one or two other noble Lords!
In Committee, we debated whether wardens, landowners and their agents should be able to request identification from people on access land. The Government's position has not changed in response to this amendment.
We do not believe it is right that such "authorised persons", if they happen to believe that a person is a trespasser or has committed an offence, should be able to require such information to be provided. That would be contrary to the position not only in public places, such as on the street, but also when someone trespasses (or indeed commits an offence) not only in someone's garden, as the noble Baroness, Lady Hamwee, said, but in a noble Lord's home.
If someone has lost the statutory right, they may be treated as a trespasser in the normal way. If someone has committed an offence, he will lose the statutory right but can also be dealt with in the usual way by the authorities. No one, apart from the police in certain circumstances, can require identification from someone in the street, or in his home, even when that person has committed an offence. We do not believe that an exception should now be made for access land.
The noble Viscount, Lord Bledisloe, and the noble Lord, Lord Jopling, referred to situations in which people were being extremely difficult. The noble Viscount referred to a person who responded with a range of expletives. He may agree that if one were to ask such a person for his name his response could be a further expletive.
Viscount Bledisloe: My Lords, I find the Government's response deeply unsatisfactory. In Committee, the noble Lord, Lord Whitty, said that he had considerable sympathy with the position and that where an offence had been committed there was an argument in favour of such a provision. In certain circumstances, one can ask another person for his identity. If you are involved in a car accident, you are required to exchange particulars, even though you may be wholly innocent of fault. If someone is in your house unlawfully, you can physically detain him until the police arrive and find out who he is. It is not good enough merely to say, "You are not meant to let your dog run wild". When I find a dog running wild, I cannot find out to whom it belongs even though it is savaging my land and has caused damage.
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The provision is a recipe for physical violence because the only thing the owner is entitled to do is to find a couple of other people, pick the chap up and physically throw him off the land. I do not believe that the Government's desire is that in such circumstances people should come to fisticuffs. Those who do not like the amendment must surely recognise that they must come forward with action that the warden or owner can take if he finds someone misbehaving who will not stop or give his name. Do the Government really expect violence to take place and the person to be forcibly ejected?
The position is deeply unsatisfactory and I hope that the Government will think of something to do about it. I shall return to the matter in some form or another at Third Reading but, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 21:
Page 2, line 35, leave out subsection (4) and insert—
("(4) If a person becomes a trespasser on any access land by failing to comply with—

(a) subsection (1)(a),

(b) the general restrictions in Schedule 2, or

(c) any other restrictions imposed in relation to the land under Chapter II,

he may not, within 72 hours after leaving that land, exercise his right under subsection (1) to enter that land again or to enter other land in the same ownership.").
The noble Lord said: My Lords, we debated in Committee whether wardens or landowners and their agents should be able to request identification—I beg your pardon, I am reading the wrong brief! That has not happened to me for years!
We gave an undertaking in Committee—does that sound better?—to consider the case for extending the period during which the statutory right is lost where someone breaches a restriction. We have considered the matter very carefully. We are aware that breaches of restrictions may well be very minor—for example, feeding a handful of grass to a horse—but we accept that in order properly to protect the interests and the needs of those owning and managing the land, and effectively to discourage people from breaching the restrictions, we should extend the period for which the statutory right is lost.
The amendment will ensure that a user who fails to comply with subsection (1)(a) by damaging a wall, fence and so on, or who breaches a Schedule 2 restriction or any other restriction imposed under Chapter II, will lose the statutory right for 72 hours after leaving the land. We believe that 72 hours is a reasonable time for the right to be lost in such circumstances.
We have always emphasised that those exercising the new right of access should be responsible and this amendment is intended to promote that message.
Perhaps for the convenience of the House I may respond to Amendment No. 21A, which is an amendment to Amendment No. 21. The amendment

1015
would mean that someone in breach of a restriction would lose the right of access to all access land, not just land in the same ownership.
As we explained in Committee, we do not believe that someone who breaches a restriction, perhaps to trivial effect, and thereby becomes a trespasser should lose the right of access to all access land. On a practical level, it would simply not be possible to enforce that. There is a good chance that if a person is asked to leave an area of access land because he has breached a restriction, should he return in the next 72 hours he will be identified by the owner, or the owner's agent, and challenged. But if he lost his right of access to all access land, it is unlikely—indeed, impossible—that anyone would even know that he had breached a restriction on other land, and therefore would have no reason to ask him to leave. Even the walker might not know of his breach if the landowner of the land on which the breach took place was not bothered by it and allowed the person to remain on the land.
If a walker who has been in breach moves on to other land in different ownership, he must continue to abide by the restrictions or he will lose his right of access to that land, too. That is a practical requirement which both landowners and walkers will be able to understand.
Opposition Amendment No. 22 is covered by Amendment No. 21. I beg to move.
7.30 p.m.
Baroness Byford Baroness Byford moved, as an amendment to Amendment No. 21, Amendment No. 21A:
Line 9, leave out ("other land in the same ownership") and insert ("any other access land").
The noble Baroness said: My Lords, I thank the Government for considering our earlier amendments and tabling Amendment No. 21. I believe that a period of 72 hours makes good sense. The noble Lord has responded to Amendment No. 21A. While I understand the direction from which the noble Lord comes, the problem, which I explained to the Minister recently, is that a person will not know on which land he is walking. Amendment No. 21A means that the walker will clearly know that he is not allowed on any access land for 72 hours, which I believe is at least half a step forward compared with the argument just put forward by the Minister. The noble Lord said that that would not be enforceable because nobody would know on which land he should or should not be. However, I thought that this Bill sought to place responsibility on people who intended to use access land. The walker would know that he was not supposed to be on the land for the next three days. While I have listened to the Minister with great interest, I shall reflect upon the matter, and I hope that the noble Lord will do likewise.
I am aware that my amendment does not provide a total solution to the problem, but at least a person who has committed an offence and is told not to go onto the land for 72 hours—whether or not he ignores it is up
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to him—knows that he should not be on any access land for that period. We believe that that is a sensible step. I beg to move.
The Deputy Speaker (Baroness Turner of Camden): My Lords, I must inform noble Lords that if Amendment No. 21 is agreed to because of preemption I cannot call Amendment No. 22.
Baroness Young of Old Scone: My Lords, I add my support to Amendment No. 21. I welcome the extension of the exclusion to 72 hours with respect to minor infringements in Schedule 2. The amendment provides a more substantial exclusion which is a serious deterrent and a demonstration, which is otherwise missing, that infringements are regarded with a degree of seriousness. There are other issues about penalties which the 72-hour exclusion does not meet, and I intend to deal with those in Amendments Nos. 23 and 25. However, I thank the Minister for going as far as he has.
Lord Mancroft: My Lords, I join the noble Baroness, Lady Young, in thanking the Government for tabling this amendment and recognising the issues concerning sanctions that I and my noble friends raised at Committee stage. Undoubtedly, a 72-hour exclusion period is a great improvement on 24 hours because it extends over the long weekend, and we are grateful to the Government for taking that step. It would be helpful if the steps went slightly further, but one can perhaps always say that. However, my noble friend's amendment is a further step in the right direction.
I take on board the Minister's observation that to ban people from all access land for 72 hours may be unenforceable. All such sanctions carry with them the possibility of unenforceability. However, if a 72-hour exclusion from all access land is unenforceable, the reality is that all the sanctions under the Bill, and the rules and regulations attached to them, are also unenforceable. The real problem with this Bill is not the theory behind it but its enforceability (if that is the right word) and how it will work on the ground. Therefore, the greatest concern is that the charge of unenforceability can be levelled at virtually every area of the Bill. Nevertheless, on this occasion I thank the Minister for tabling the amendment.
Baroness Miller of Chilthorne Domer: My Lords, we on these Benches also warmly welcome the Government's move in this direction, for which we pressed in Committee.
Baroness Byford: My Lords, I beg leave to withdraw Amendment No. 21A.
Amendment No. 21A, as an amendment to Amendment No. 21, by leave, withdrawn.
Lord McIntosh of Haringey: My Lords, in moving Amendment No. 21 I should have spoken also to Amendment No. 27 which is purely consequential. I shall move that amendment when we reach the

1017
appropriate point. In addition, the noble Lord, Lord Mancroft, should not think that this is a further step in any direction as far as concerns the Government.
On Question, Amendment No. 21 agreed to.
[Amendment No. 22 not moved.]
Lord Burlison: My Lords, I beg to move that consideration on Report be now adjourned. In moving this Motion, I suggest that Report stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Hepatitis C
7.35 p.m.
Earl Howe Earl Howe rose to ask Her Majesty's Government what plans they have to improve the care and treatment of patients with hepatitis C.
The noble Earl said: My Lords, this Question has been triggered by a series of briefings given to me recently by the British Liver Trust. Its work, together with some academic research to which I have had private access, leads me to conclude that there is a great deal to be done before the service provided by the NHS to patients with hepatitis C, or to those who are suspected of having it, can be considered in any way satisfactory.
I begin with some factual background. Hepatitis C is what might be termed a "new" disease. As a virus it was separately identified only in 1989, although it is known to have existed in various parts of the world long before that. The World Health Organisation estimates that more than 170 million people worldwide may be infected with it. In Asia and parts of Africa, and especially in Egypt, its prevalence is 10 per cent or more. In the UK the best and most recent estimates are that it affects approximately 0.7 per cent of the population, equal to perhaps 400,000 people. That figure is only a rough guess based on extrapolations. The true figure could be lower or, more likely, a great deal higher. I shall return to that issue in a moment.
The hepatitis C virus, or HCV, is a blood-borne infection. There are thought to be at least six strains of the virus, each with sub-strains numbering about 40. Over the course of time these strains may change spontaneously. It is partly for this reason that to date no vaccine for hepatitis C has been developed. It is commonly agreed that the largest single transmission route is through intravenous drug misuse. There are, however, many others, including transfusions of contaminated blood before the introduction of screening procedures and maternal transmission in pregnancy. HCV, therefore, cuts right across the social spectrum. In prisons where the incidence of HCV is especially high, transmission occurs not only through the re-use of needles among drug-users but also from the sharing of items such as razors and toothbrushes which may draw blood.
The incubation period of the disease is long. A large percentage of people who develop hepatitis C today are in their 40s and will probably have contracted it 20 or more years ago. It is this feature of HCV which is particularly significant in terms of healthcare planning. Even if all the routes of transmission were somehow to be closed off tomorrow, we would still face the prospect of large numbers of cases emerging over the next 10 to 20 years.
What implications does this have for the NHS? The good news, such as it is, is that hepatitis C is by no means always fatal. Indeed in 20 per cent of cases it disappears spontaneously. However, in the other 80 per cent of cases, the vast majority of those infected will go on to develop a long-term chronic illness. Some 20 per cent will contract cirrhosis of the liver, and of those half will develop liver cancer. Even among those less severely affected the symptoms of the disease can be debilitating—fatigue, depression, lethargy and a resultant poor quality of life are common. If, as some specialists predict, we can expect to see many hundreds of thousands of people needing treatment for hepatitis C over the next decade, the costs to the National Health Service are likely to be significant.
Combination therapy, involving Interferon and Ribavirin, costs some £9,600 per annum per patient. Although it is able to cure up to 40 per cent of patients, the majority of health authorities either do not provide it at all or provide it on a limited and inadequate scale. Indeed, in a survey conducted by the British Liver Trust in 1998, it was found that only a fifth of health authorities had any sort of strategy for tackling HCV, and fewer than one third had a budget for treating it.
The postcode lottery is therefore alive and kicking with hepatitis C. In part, that is a simple reflection of inadequate funding. It is also explained by uncertainty among GPs and health authorities about the cost-effectiveness of combination therapy. That uncertainty should now to be banished in the light of the guidance published this week by NICE. The NICE guidance, though effectively only re-stating the established evidence about the clinical effectiveness of combination treatment, is nevertheless very welcome.
What are at stake, of course, are not simply the direct benefits that combination therapy can bring to patients. Timely drug treatment reduces the long-term costs of care. In particular, it can reduce the need for liver transplants, which can cost up to £50,000 per patient, excluding follow-up medication. It also mitigates the high cost of providing care for patients who develop advanced liver disease and associated complications. It is disappointing that these issues appear not to have been examined by NICE as part of their evaluation.
The idea, however, that the NICE guidance will somehow solve the postcode lottery is, I fear, overoptimistic. Health authorities will still need to prioritise funding to meet the cost of treatment. Those costs have been estimated by NICE at £18 million per annum initially. That figure excludes the associated costs for pathology, virology, radiology and specialist nursing. The verdict of every reputable HCV specialist

1019
is that spending money early will save a great deal more money later. Yet we have to ask what incentive a health authority has to invest those very considerable sums. One deterrent, incidentally, is that the costs of liver transplants, unlike combination treatment, are funded centrally.
On this side of the House we believe that the barrier to funding relatively expensive drug therapies such as Interferon alpha and Ribavirin could he eliminated by the creation of a central funding mechanism for such exceptional medicines, quite separate from health authority budgets. But if that is not to happen, then the very least that is needed is clear guidance from government to health authorities to make the therapy widely available.
But therapy is only one aspect of the problem. There is a woeful lack of proper facilities in many areas to test and counsel HCV patients. There is no common protocol to which health authorities work in looking after and managing such patients, both before and after testing One important improvement, mentioned by NICE, would be the wider availability of confidential testing facilities, of the kind that currently exist for HIV. It is thought that many people are deterred from seeking a test for HCV because it will feature on their medical record. That in turn will stigmatise them in their prospects for employment, life insurance and a mortgage. It will also have an effect on personal relationships. As a result it is likely that many people whose condition could otherwise be arrested are not even being diagnosed.
Just as there is no uniform pattern throughout the country in the provision of testing facilities, so too there are very varied procedures followed for the counselling of patients. The way in which patients are presented with their test results is often insensitive and ill-thought through in the extreme. A great many receive no advance preparation for what they are about to hear and no advice about it afterwards. When so much is at stake, that cannot be a satisfactory way of proceeding. As NICE says explicitly in paragraph 5.21:
"Confidential HCV testing and counselling should he made available whether or not treatment is initiated."
The other area crying out for funding is research. There is much about HCV that remains unknown. Some aspects of the pathogenesis of HCV are still hidden. The precise mechanisms by which HCV causes liver cancer have not been identified. We still need a simple, cost-effective and reliable diagnostic assay test, both for the initial detection of HCV and for monitoring the disease as it progresses. There are still no firm data on the susceptibility of HCV to disinfecting agents, which is important bearing in mind that the virus, unlike HIV for example, can survive many hours outside the body. Perhaps the Minister can tell the House what research is currently being conducted in any of those areas.
It is all too easy to stand in your Lordships' House and sound alarmist. I never have any wish to do that. Nevertheless, when medical experts tell us that, "We are poised on the brink of an epidemic, which could have far wider ranging implications than AIDS", we
1020
have a duty to pay close attention. Those were the recent words of Dr William Rosenberg, senior lecturer in medicine and consultant physician at Southampton General Hospital and the University of Southampton.
There are other experts who predict that in two or three years' time, hepatitis C will outstrip AIDS as the most common cause of death in early and mid-life. The NHS needs not just guidance from NICE but a coordinated strategy. Variations in facilities and inappropriate management procedures need to be ironed out.
To that end, I would welcome the Minister's comments on the merits of trying to devise a national protocol for the management of HCV, building on the NICE guidance; perhaps in the first instance by adopting the guidelines issued by the European Association for the Study of the Liver. A linked, but separate, strategy needs to be adopted in the Prison Service. Overarching all of that, there has to be a clear policy on educating the public about the risks of HCV and about prevention.
All this amounts to a great deal. I make no apology for listing what needs to be done, because the gaps in the provision of services are currently wide. But I hope, at the very least, that the Minister will say that he shares my perception of this issue as one of the most pressing and least well-resourced of any now facing the National Health Service. I dare to hope, too, that this debate will serve to add impetus to the Government's efforts to iron out those inequalities in healthcare provision on which the Minister and his colleagues have rightly laid such emphasis.
7.48 p.m.
Baroness Masham of Ilton: My Lords, I am grateful to the noble Earl, Lord Howe, for giving your Lordships the opportunity of discussing the hepatitis C virus tonight, and for the noble Earl's most informative speech.
When I said to one of the Doorkeepers last night that we would be discussing HCV tonight, he said, "I know A and B, but what is C?" Does the Minister think that there should be more health education on this subject? Should not the public be made more aware of this worldwide virus? Prevention is better than cure, as cure seems difficult.
There are many injecting drug addicts past and present who are HCV positive. People who go in for body piercing and tattooing can also be at risk. All health workers involved with taking blood or working with needles are at risk of needle stick infection. HCV can lie in the body for up to 30 years and therefore positive people can be at risk of infecting others. Can the Minister tell the House what development and progress there is on a vaccine for HCV?
When I broke my back and had a severe internal haemorrhage, I had several blood transfusions, for which I was very grateful as they saved my life. Years later I had to have blood transfusions again, and the third time it was discovered that my blood group had changed from negative to positive. I can assure your Lordships that I was very uneasy when that happened.

1021
The last transfusion I had was around the time when HIV presented in the UK and hepatitis C was being recognised. Some years later, because I had had blood, I requested a blood test for HCV. It was not an easy process. The nurse involved asked me what I would do if I was positive. I told her, "At least I would know". I hope that the process of testing and counselling has improved.
From what I have heard there seems to be no national strategy for dealing with hepatitis C and no national guidelines on the management and treatment of those infected. This complete lack of planning of HCV services throughout the UK results in very variable standards of management and care after diagnosis for any patient with hepatitis C. In some areas of the UK patients have to wait months or years with hepatitis C to see a hepatologist or HCV specialist and there are very few counselling and support services.
Hepatitis C is difficult to treat. Interferon and Ribavirin combination therapy was licensed last year and has been shown to clear the virus in about 30 per cent of cases. It is a highly unpleasant treatment to take, however, and the decision to start therapy seems never an easy one. Currently, many health authorities are denying the treatment to people with HCV on funding grounds, thus removing any hope of a cure.
With so many difficult problems facing our National Health Service, particularly the shortage of skilled staff, can the Minister say how the National Blood Service is coping? Has it enough skilled technicians and doctors to ensure that blood and blood products are safe from viruses such as HCV? Are the Government planning a review of the services so that the public will have confidence in this vitally important area?
I know a charming man who is a haemophiliac with HCV. He is married, working and has three young children and is taking part in trials. Can the Minister give an update on the drug trials and say which are the most successful combination therapies with as few side effects as possible? Is it a fact that the response is four times higher with Interferon Alpha with polyethylene glycol than other combinations? Does the noble Lord agree that NICE should make it clear that its conclusions may not be appropriate in the face of new therapeutic agents?
A recent European statement recommended that combination therapies should be offered to all previously untreated individuals, provided they had no contra-indications. It came from the International Consensus Conference on Hepatitis C in Paris in 1999. Does the Minister believe, like others do, that each health authority should work to a protocol in respect of the way it handles patients with HCV? Will the Government send out guidelines so that the services for patients with hepatitis C virus is a truly national one?
Tonight we are talking about patients with a serious condition resulting in haemolytic anaemia, fatigue, flu-like symptoms, bone marrow suppression and liver
1022
cancer and liver function failure. I hope that this debate will do something to help to improve their care and treatment.
7.55 p.m.
Lord Colwyn: My Lords, my noble friend Lord Howe has raised an important issue. As he said, hepatitis C virus infection is widespread, with an estimated 3 per cent of the world population being infected. Acute infection is usually mild but chronicity develops in as many as 70 per cent of patients, of whom 20 per cent will eventually develop cirrhosis and between 1 and 4 per cent will develop hepatocellular carcinoma.
The virus has become a major issue with the media, with the focus on haemophiliacs and whether or not HCV testing in blood donors was delayed unnecessarily. But that is not the issue in this debate. Like the AIDS virus, hepatitis C virus has an imagined stigma. Some say that it is a dangerous virus on the loose, yet others say that its effects on the liver progress only very slowly and infection is asymptomatic in most patients. Many who are infected may never be detected and diagnosis is difficult as the concentration of HCV antigens in the sera of patients is so low that testing has to be undertaken in specialist referral centres.
Groups of people who are at high risk of hepatitis C infection are well defined. As I have just mentioned, haemophiliacs have an 80 per cent risk, followed by IV drug abusers at 50 to 75 per cent and haemodialysis patients at 2 to 5 per cent. There are also patients in high risk countries and patients who have multiple transfusions.
Although I am concerned that the diagnosis and treatment for patients with hepatitis C should be of the highest priority, I have a more selfish attitude in that I am equally concerned about the risk to healthcare workers who will be treating infected patients, largely without any knowledge of that infection. I declare my interest as a practising dentist working with patients who may indeed have hepatitis C. Research has shown that dentists who have not been immunised are three times more likely to acquire HBV infection than the general population and that non-immune surgeons are six times more likely to acquire the infection than is the case in the general population.
The risk to healthcare workers is low, but annually between 2 and 4 per cent of new HCV infections occur in this group. The first known case of occupational mucosal transmission of HCV involved a nurse who was splashed in the face and eyes by blood. HCV has been detected in the saliva of patients with chronic hepatitis who are undergoing dental treatment. There is a report of HCV being transmitted by saliva in a human bite. But there is little epidemiological data to suggest that saliva is a major mode of transmission. However, I am delighted to be able to say that studies show that the risk of HCV infection through the practice of dentistry generally is low.
The incidence of sero-conversion to HCV after needle stick injury exposure to HCV-infected blood ranges from 0 to 10 per cent and averages at about

1023
2 per cent. I do not know what the average number of needle stick injuries to dentists and doctors is in this country, but I suppose that it happens to me about once a year. Sadly, rubber gloves are no protection against some of the instruments and needles that we use.
Currently, there is no vaccine for HCV and the chance of developing one is complicated by the virus's diversity and ability to mutate. Perhaps I may follow up the question of the noble Baroness, Lady Masham, and ask whether the Minister can update us on any of the latest work in this field.
The problem posed to the dental team for care of HCV patients is twofold. First, the prevention of the transmission of HCV from patients who knowingly or unknowingly are carriers of the virus to other patients, staff and dentists in the dental care setting and, secondly, the management of the patient with a degree of impaired hepatic function—however rare this may be.
The vast majority—probably all practising dentists in the UK—are aware that all patients present some potential infectious risk. Many patients are unaware of their condition and cannot be reliably identified by even the most comprehensive medical history. In view of this, a system of dental delivery is adopted for all patients which prevents the possibility of disease transmission in the dental environment. Recommendations on the prevention of cross infection are issued by the General Dental Council, the British Dental Association and the indemnity providers, of one of which I have the honour to be chairman.
I hope that the Minister will take this opportunity to reassure dentists and other healthcare workers that, with efficient cross infection control, it is most unlikely that there would be any transfer of the virus and that it is perfectly safe to treat patients with hepatitis C. This morning, I happened to see Professor Roger Williams, who asked me to stress this point. It is extremely important.
Patients who do have impaired hepatic function should be treated following consultation with their general medical practitioner as there are possibilities of a potential for post-operative bleeding and for the interaction of some commonly used drugs which are metabolised in the liver.
I am sure that the Minister will confirm the announcement by NICE, which I read in The Times this morning, that patients with HCV—and I presume this applies only to those with symptoms of liver damage—will be able to be treated with Ribavirin and Interferon alpha within the NHS. Sadly, there is a long list of contraindications for Interferon treatment and it is probable that those patients most likely to respond are those least likely to need immediate treatment.
A recent survey of patients with HCV in south Australia, published in the Australian Dental Journal this year, shows that there is a marked discrepancy between the oral health of those infected and a comparison group. I shall not go into the details of the various dental problems, but there is certainly a need
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for priority delivery of dental care which must incorporate a strong preventive programme and oral health education component in order to sustain health improvement. I am sure that the Minister will be able to confirm that the dental strategy has taken these priorities into account. As we passed in the corridor earlier, the Minister asked me to endorse the dental strategy. Of course I endorse it and I hope that it will deliver exactly what we are asking for this evening.
In conclusion, as a member of the Science and Technology sub-committee looking at complementary and alternative medicine and with my head full of information about homeopathics and herbal medicines, perhaps I may mention the relevance of natural medicine to patients with HCV. Despite longstanding scepticism towards the value of vitamin supplements on the part of the conventional medical establishment, there is currently a shift towards acceptance of the need for patients with illnesses such as HCV to take supplements to address proven likely deficiencies.
The use of botanicals can offer tissue support, the prevention of necrosis of liver cells, provide alternative pathways of metabolism to circumvent inflammation and boost the immune system. Particular botanical phyto-chemical constituents such as silymarin from the milk thistle plant have demonstrated an ability to inhibit viral reproduction, support the immune system and regenerate hepatic cells. I thought that the Minister would like to have that information!
8.4 p.m.
Lord Turnberg: My Lords, I am most grateful to noble Lords for allowing me to speak at this point in the debate and, of course, I am grateful to the noble Earl, Lord Howe, for bringing forward this important matter in the House. I understand that I am allowed to make only one point in the two or three minutes which I have been given. I wish therefore simply to stress the importance of prevention in the control of this disease.
Preventive measures do work. We have seen already that transmission of the disease through blood transfusions and blood products has been virtually eradicated by testing blood donors. We also have good evidence that needle exchange schemes reduce quite markedly transmission among intravenous drug abusers. But here the record is not nearly so good. Experience in other countries suggests that we could do much better here if we invested more in needle exchange schemes, a point which I am sure that my noble friend will take on board.
There are preventive measures which can be taken to reduce transmission of the virus from infected mothers to their babies at birth. This requires surveillance and testing of at-risk mothers in the ante-natal period and the use of precautionary efforts at the time of birth.
I should say, also, that if we agree that prevention is important—as I am sure noble Lords will—then we must know more about the prevalence of the infection in the at-risk population. How else would we know where to focus our efforts? I speak here from the perspective of chairman of the Public Health

1025
Laboratory Service Board, an interest that I should declare. Although testing and surveillance of the at-risk population is cheap compared with the costs of treatment, funding for surveillance would be money well spent and deserves the investment that is needed if we are to manage this disease optimally.
A part of that surveillance testing is the increasing requirement to test for specific sub-types or genotypes of the virus, each of which has somewhat different clinical effects and plays an important part in determining the length of time for which patients need treatment. All of that speaks for the need for high quality genotype testing and surveillance at both local and national levels as an important part of the prevention and treatment of hepatitis C disease. I hope that my noble friend will agree with that.
8.7 p.m.
Lord Clement-Jones: My Lords, I, too, congratulate the noble Earl, Lord Howe, on raising the issue of HCV in this debate tonight. At the same time I should like to pay tribute to C Change and Action on Hepatitis C, who have done so much to move the subject of HCV up the political agenda. We have heard four extremely authoritative speeches. An extremely cogent case has been made out in a number of areas related to HCV. All that I can do is to add a counterpoint to the themes elicited by the noble Earl, Lord Howe, and other noble Lords who have spoken in the debate.
The news about the determination by NICE on the combination therapy of Interferon alpha and Ribavirin has been most welcome. However, that must not obscure the fact that there is still a range of issues, that we have discussed today, along with steps to be taken which are of crucial importance to HCV patients and, indeed, to those who may be diagnosed in the future, which are almost as important as the actual treatment given to patients.
Even in respect of yesterday's decision, consultants such as Dr Graham Foster of St. Mary's Hospital and Dr William Rosenberg of Southampton University Hospital have gone on record to say that they are worried that health authorities may not prioritise funding to meet the NICE recommendations. I hope that, during the course of his speech, the Minister will be able to give assurances about the timing of funding becoming available for this treatment.
As we have heard, the incidence of hepatitis C appears to be much higher than previously thought. It is now estimated to affect some 0.7 per cent of the population, or between 200,000 and 600,000 people in the UK. This compares with 1.8 per cent in the US and, indeed, some 170 million people worldwide who are reckoned to be infected.
Those deriving hepatitis C from blood transfusions and infected blood products number some 7,000 in total. As we have heard, the key route nowadays for the majority of hepatitis C sufferers, is from injecting drug use. However, it also occurs from other causes
1026
such as tattooing and body piercing. Eighty-five per cent of those infected develop chronic disease. We have been told that some 30 per cent will die of it.
The time-lag is long, some 20 to 25 years from the initial infection to when the symptoms appear. This means that it is people in their forties who are showing the symptoms of their infection which probably derived from drug use in their twenties.
A report in the journal, Gut, in July of this year, described research carried out between 1997 and 1999 among 4,825 women in the St. Mary's Hospital antenatal clinic. It showed that one in 100 women were infected with hepatitis C. This implies that we have a slightly harder figure than the range of 200,000 to 600,000. It implies that 400,000 people in the UK may be infected. We have heard from the noble Lord, Lord Turnberg, the importance of ante-natal screening.
What needs to be done? As the noble Earl, Lord Howe, and campaigners have made clear, a national strategy—as exists in many other European countries and Australia, and as is being formulated in the USA—is required, together with its counterparts in local trusts and health authorities. A recent survey by the British Liver Trust showed that only 20 per cent of hospital trusts appear to have a strategy for hepatitis C. Only 6.7 per cent of the trusts surveyed thought that HCV was a high social and health priority.
Setting a national strategy means establishing the prevalence of HCV, an issue to which many noble Lords have alluded; it means monitoring the epidemic—because that is indeed what it is; it means establishing the most effective ways of preventing further infection; it means ensuring proper diagnosis; it means ensuring appropriate treatment; and it means ensuring appropriate social support and care.
More research is needed. I believe that the department has allocated only about £500,000 for research into HCV and injecting drug use. If we are faced with an epidemic of this proportion, does not the Minister agree that we need far more resource devoted to research?
In terms of prevention—which is vital because 40 per cent of all liver cancer is caused by hepatitis C—as the noble Lord, Lord Turnberg, and the noble Earl, Lord Howe, said, there must be the institution of confidential counselling, as there is with HIV testing and as is recommended by NICE. It is vital that we identify sufferers. The French plan to identify 85 per cent of sufferers within the next two years. We appear to have no such plan, according to an Answer to a Parliamentary Question in July this year. Why not?
As to treatment, it is vital that hepatitis C sufferers receive the appropriate treatment, not only because there are effective treatments but because the ultimate end result of hepatitis C—liver disease and cancer—will be far more expensive to care for in terms of treatment and transplants. As some noble Lords have mentioned, the cost could be as high as £9 billion. There is a great shortage of donor organs in any event, as your Lordships will be aware.

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To ensure the appropriate treatment there must be treatment protocols, perhaps in the form of national guidance or perhaps a national service framework. If NICIE had the resources—which it currently clearly does not—this would be an appropriate task for it. The clinical guidance has been promised for three years, yet we appear to be no closer to it than we were.
But, above all, the appropriate resources must be made available by the health authorities and trusts. It has been noticeable how influential the NICE appraisal of taxanes has been and how health authorities have responded with an appropriate allocation of resources to pay for treatment for breast and ovarian cancer. I hope that they will do likewise after the current NICE guidance and that budgets of between £7,000 and £12,000 for a course of treatment of combination therapy can be found for appropriate patients. I hope that the Minister will give those much needed assurances about the funding which must follow if NICE's guidance is to mean anything. Will the Minister grasp the nettle? I look forward to his response.
8.13 p.m.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl, Lord Howe, for initiating the debate and I appreciate the contributions made by noble Lords. It has been a wholly constructive debate.
Let me say at once to the noble Earl, in particular, and to other noble Lords that I fully accept the argument that effective healthcare services are needed now for patients with hepatitis C, or HCV as it is commonly known. I also fully accept that if it is not actively tack led HCV may become a significant health problem in the future. I agree with the noble Earl that there is much to be done.
The stark facts, as the noble Earl suggested, are that HCV is the biggest cause of chronic liver disease. Some 250,000 people may be infected in this country. Both the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, posed questions about the estimated prevalence and incidence of hepatitis C in the UK. My understanding from the current information available to the department is that the prevalence of chronic carriage of hepatitis C may be around 0.5 per cent of the general population—that is, about 300,000 people in the UK and 250,000 people in England.
The incidence of hepatitis C is not known as the virus is usually acquired without symptom. There is also likely to be an increase in the diagnosis of hepatitis C in the next 110 years as individuals who have carried the virus for some time are identified through the wider testing of groups which have been at risk.
I know that data published in the medical journal, Gut, on 18th July reported a hepatitis C prevalence of 0.8 per cent in the population of pregnant women in inner London. However, the advice I have received is that estimates of such infections based on inner cities, where there may be clusters of people at higher risk due to injecting drug use, may not be representative of the country as a whole. My understanding is that surveys of pregnant women have reported a prevalence as low
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as 0.2 per cent in other parts of the country. This leads to the general conclusion that the prevalence in the country as a whole may be around 0.5 per cent.
As the noble Earl said, for most patients the virus manifests itself as a chronic illness with life-long implications. All too often patients with HCV are the most vulnerable members of society. In addition to counselling and support services, there are currently only two drug therapies licensed for treatment. Of course, with little chance of a vaccine being developed to prevent infection, HCV prevalence is likely to increase.
On the issue of vaccination, to which both the noble Baroness, Lady Masham, and the noble Lord, Lord Colwyn, referred, my understanding is that there is currently no vaccine to protect against hepatitis infection. Sadly, it seems unlikely that there will be one in the near future. As the noble Lord suggested, as the virus is known to mutate at a particularly rapid rate, this makes the development of an effective vaccine extremely difficult. A number of centres around the world are involved in research into a vaccine. We must hope that eventually there will be a successful outcome. But we certainly cannot plan our, future services on that basis.
People who became infected years ago without realising it are now presenting with liver disease. HCV infects the blood. Injecting drug users, health workers and those who received blood transfusions before screening was introduced are potentially at risk. Once transmitted, the virus may quickly cause inflammation of the liver, an acute illness from which people recover. But, as has been suggested, for perhaps 80 per cent of those people the infection becomes chronic and has longer term health implications.
People with chronic HCV infection can remain virtually symptomless for many years, but during this time the liver becomes inflamed and damaged. If not treated, again as has been suggested, it may eventually progress to severe liver disease or occasionally liver cancer, causing the liver to fail and the patient to require a transplant.
Of course we need to talk about treatment and care, but prevention is crucial. I agree with my noble friend Lord Turnberg on that. In relation to blood, the risk of transmission of hepatitis C via blood donations has been virtually eliminated by the screening of blood donors for antibodies to the hepatitis C virus and the treatment of blood products. I hope that answers the point raised by the noble Baroness, Lady Masham.
Again as my noble friend suggested, needle exchange schemes can play a very important role in hepatitis C prevention. We are working to improve availability through shared care schemes and by liaising closely with health authorities. We have issued guidance to the NHS on the purchasing of services for and the clinical management of injecting drug misusers, which includes advice about hepatitis C. I want to assure noble Lords that further work is planned to strengthen the current activity by reminding health authorities of the importance of measures to tackle hepatitis C.

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Prevention is vital; so are treatment and cure. I listened with great interest to the remarks in relation to counselling and testing. I fully acknowledge that the support provided by counsellors is invaluable. They may come from a wide variety of backgrounds: some may be specialists in drug misuse; others may have a background in other diseases such as haemophilia, which has close ties with HCV.
Picking up on the NICE recommendations in relation to counselling and advice services, where NICE recommended that they be reviewed I can assure noble Lords that we shall indeed do that. I accept the challenge to introduce a co-ordinated approach. The same goes for issues relating to testing. We accept the need to review our current policies and arrangements on testing—again, as recommended by NICE. I hope that that will lead to a more co-ordinated response in the future.
So far as concerns treatment with drugs, it is by no means the perfect solution. Interferon monotherapy and combination therapy, where Ribavirin is added, have unpleasant side effects and may not be suitable for all patients. It was clear to the Government that the NHS needed guidance to ensure that patients gained maximum benefit from the available treatments. That was why NICE was asked to investigate the use of combination therapy as a matter of urgency. That guidance was published yesterday.
Briefly, combination therapy is recommended as the treatment of first choice for moderate to severe HCV in the following categories: previously untreated patients and those patients treated with Interferon monotherapy who responded but then relapsed. There are many other recommendations in the NICE guidance and I commend those guidelines to noble Lords. But I accept the key question that has been raised in relation to funding.
The experience so far, as the noble Lord, Lord Clement-Jones, suggested, is that NICE guidelines will be followed by health authorities. That is the whole purpose of NICE: to ensure a uniform response throughout the National Health Service. I am not convinced about a central funding mechanism; I have severe doubts about its practicality. I also believe that it would run the risk of absolving health authorities from making local decisions and from responsibilities that they ought to be carrying.
The additional resources that we have put into the health service this year are intended among other things to enable NHS bodies to fund positive recommendations from NICE. NHS bodies will fund treatment on clinical recommendations in line with the guidance from NICE. I believe that sufficient resources have been allocated for the current tax year to allow that to happen.
So far as concerns clinical guidance, a number of questions were asked about its availability. Professional guidance on the management of patients with HCV will also be available shortly. The Royal College of Physicians, the British Society of Gastroenterology and the Association for the Study of
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the Liver are finalising evidence-based clinical guidelines for the treatment of HCV. I hope that those guidelines, alongside the implementation of the NICE guidelines in relation to drugs, will produce a consistent approach throughout the National Health Service.
Before replying to a number of points raised in the debate, I should like to commend the remarks of my noble friend Lord Turnberg in relation to the work of the Public Health Laboratory Service. This service provides invaluable public health data, crucial in supporting health authorities in the formulation of local healthcare strategies. I assure noble Lords that we are looking at how we can enhance that information and how we might develop a modelling tool to predict future trends.
Eighty per cent of HCV transmission is associated with injecting drug misuse. Misconceptions, rumours and misinformation are some of the greatest allies of HCV transmission. We are keen to avoid the stigmatisation that the first HIV infected people had to deal with and we recognise the value of accurate information. To tackle these issues I am pleased to announce that this year we shall be funding a number of activities to increase the skills of professions working in the drug treatment field so that they can be better equipped to encourage drug misusers to stop injecting and sharing. Work will begin almost immediately on the development of up-to-date guidance on hepatitis C and strategies to minimise transmission, to be backed up by regionally based workshops and seminars.
The noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, asked about research. Recent Department of Health funded research indicates that the prevalence of HCV among drug misusers is falling. That is good news, and many people deserve credit for it. But government funding does not stop there. We have, for example, commissioned a £ 1 million study into the potential health benefits of treating the disease in its mild stage. Because of the harsh treatment regime, the current advice is to avoid drug therapy at this stage as the potential risks are likely to outweigh any known benefits. But there is much in that area that we need to research. I should be happy to place in the Library a copy of the extensive research projects that are under way.
I was asked about preventing hepatitis C transmission in prisons. The Prison Service has a strategy for preventing the spread of communicable diseases in prisons which covers training, education, prevention, risk reduction and harm minimisation. This is complemented by the Prison Service's drug strategy. Disinfecting tablets for the purpose of clearing drug taking equipment have been trialled in 11 establishments since 1998. We are now considering whether we should extend the trial to all establishments.
The noble Lord, Lord Colwyn, is absolutely right as regards the position of dentists. Provided that dentists comply with the accepted standards of infection control in their surgeries, dental treatment for patients

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with hepatitis C poses no additional risk to the patient, the dentist, the dental staff or other patients. I fully accept the point raised by the noble Lord about oral health. I thank him for his remarks on the dental strategy.
In conclusion, I say to the noble Earl, Lord Howe, that I accept the challenge that he posed to the Government. I believe that the direction we are taking will maximise NHS services for people with HCV. I believe that we are taking a strategic approach. With regard to prevention and control activities, we are considering how we can strengthen and develop prevention and surveillance. We will continue to raise awareness of HCV by working with the voluntary sector and others to provide information and advice for the general public and for those groups most at risk. We are funding activities to increase the skills of professionals working in the drug treatment field.
With regard to treatment and care, we have recognised the increasing importance of hepatology, not only for patients with HCV but for those with other complex liver diseases who should have access to specialist hepatology units with the necessary knowledge and expertise. We have discussed this with leading liver organisations, including the British Liver Trust and the British Association for the Study of the Liver. We have agreed that the BASL should apply formally for recognition as a sub-speciality of gastroenterology for training purposes. We believe that that will supply a future good number of fully trained hepatologists who will then be able to care for these patients.
We are developing a commissioning framework to ensure that specialist hepatology services are developing to uniform standards throughout the country. I should tell the noble Earl, Lord Howe, that regional specialist commissioning groups will be heavily involved in implementing the commissioning framework. I believe that that will lead to a much more uniform and co-ordinated approach throughout the country. Alongside the recommendations of NICE in relation to the use of combination therapy, I believe that that will ensure that, in the future, the NHS will have the ability to prevent this distressing disease, as far as that is possible, and ensure that counselling and testing services are up to the required standard. We must be able to provide the best treatment.
I believe that the noble Earl, Lord Howe, has performed a great service for the House by raising such important issues tonight. I hope that noble Lords are assured that we are very taken with the seriousness of the points raised. We are determined to do what we can to ensure that the services and the prevention of this most distressing disease are given as much priority as is possible.
Lord Burlison: My Lords, I beg to move that the House do now adjourn during pleasure until twenty-five minutes before nine.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.31 until 8.35 p.m.]

Countryside and Rights of Way Bill
Consideration of amendments on Report resumed on Clause 2.
[Amendment No. 23 not moved.]
Lord Glentoran Lord Glentoran moved Amendment No. 24:
Page 2, line 39, at end insert—
("( ) A person who refuses to comply with an instruction from any person acting with lawful authority to enforce Schedule 2 or any restriction imposed under Chapter II, shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 25 and 26. This amendment relates to an offence of obstructing someone who is attempting to enforce restrictions. It seeks to establish an offence of refusing to comply with the instruction from a warden, or other person entitled to enforce such restrictions under Schedule 2 and Chapter II. Such a provision is standard in existing by-laws for access agreement land on open country; for example, in the Peak District National Park. It is essential that wardens have effective powers to enforce the restrictions. I suggest that simply asking someone politely to leave the land is inadequate. A stronger sanction is needed where someone refuses, when asked, to stop abusing his or her right of access.
Despite what was said earlier this afternoon regarding repeating arguments that were made in Committee, I should like to bring forward a few points that I know I mentioned at that stage. The Bill does not appear to provide for an offence of obstructing anyone seeking lawfully to enforce the restrictions set out under Schedule 2, or any other restrictions under Chapter II. It seems to me that owners need to be able to point out to abusers that, if they persist in the activity, they will commit a criminal offence and be liable to arrest and prosecution. Owners need to be able to point that out to would-be offenders, offenders or abusers. However, we want clarity in everything that is happening. I believe that we need something on the face of the Bill that can or will be used in codes of practice and other documentation where people are learning about access to the countryside. Therefore, to cover situations where a warden, a landowner, a land manager, or someone in authority, may approach a potential offender or an offender and say, "Look here, if you persist in doing that you'll be liable to prosecution: you must stop it and go.", it seems to me that it is necessary to have some sanctions on the face of the Bill.
Amendments Nos. 25 and 26 are in a not dissimilar vein. They deal with establishing a deterrent. First, we need to establish the offence. Then, having done so, we need to establish a deterrent. Perhaps exclusion orders could be used. That is an alternative route, but one that could be useful.
A similar amendment—Amendment No. 96—was not spoken to in Committee. Mr Meacher said in the other place at col. 230 of the Official Report on 11th April that exclusion orders could be used to tackle

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persistent breaches. Making this explicit in the Bill would enable it to be advertised as a deterrent in the codes produced for users. That would constitute an alternative to the civil procedures. Owners' only option under the Bill as at present drafted is to seek an injunction at their own cost to exclude a persistent trespasser. The amendment would apply to abuses committed on any day or days, not just within the same day. An exclusion order could be sought only by the access authority. This would ensure that the procedure is used only in the most appropriate circumstances.
New Section 40A(1) of the Powers of Criminal Courts (Sentencing) Act 2000—if inserted as proposed by Clause 43 of the current Criminal Justice and Court Services Bill—provides that,
"Where a person is convicted of an offence, the court by or before which he is convicted may (subject to sections 34 to 36 above) make an order prohibiting him from entering a place specified in the order for a period so specified of not more than one year".
Amendment No. 26 seeks to establish as a deterrent that a criminal offence would arise where anyone persistently—the emphasis is on "persistently"—ignored the provisions of Schedule 2 or restrictions under Chapter II. A similar amendment was not spoken to in Committee. If exclusion orders cannot be used, what further sanction, other than taking out a civil injunction at the owner's expense, can be imposed on someone who persistently ignores Schedule 2 or restrictions under Chapter II? This amendment seeks to establish a criminal offence with the minimum sanction a maximum fine of £200. It would apply only where Schedule 2, or restrictions under Chapter II, were repeatedly ignored on the same day. This is a targeted sanction for persistent abusers of the right of access on any one day. For example, I refer to a person caught driving a vehicle on moorland who returns weekend after weekend to have his fun until he is chucked off the land—which he probably regards as fun anyway. We consider that that action should be subject to a legal sanction. In such a case we consider that a fine not exceeding £200 is not likely to act as a deterrent and that an exclusion order would he much more appropriate. I hope that it is clear what we seek to achieve with the amendments. We seek to create some form of meaningful sanction. We also want to ensure that the public understand where they stand when a warden asks them to leave the land in question or to cease doing whatever they may be doing. I beg to move.
Lord Monro of Langholm: My Lords, I accept that the Government believe in conservation, as I do. The noble Lord, Lord Hardy of Wath, will remember that I piloted the Wildlife and Countryside Bill through another place. However, the message that the general public will glean from the Bill when it is enacted is that there is freedom of access with no sanctions. That is contrary to what the Government are trying to do. If sanctions are not established, we shall not achieve effective conservation. One cannot have it both ways. One must have some form of sanction against those who seek to disobey the legislation and commit
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offences that will impact on conservation. We have discussed impacts on ground nesting birds and so on. If we do not establish some sanctions, the message will go out that people can do what they like because there is nothing much that the landowner, the farmer, the tenant farmer or the gamekeeper can do to stop them.
We want to hear the Government mention again the fair balance that they have talked about. They have spoken of a fair balance, but at present the position seems to be totally weighted against those who are trying to conserve their own land in terms of habitat and wildlife. The Government should say that they will reconsider the matter before Third Reading to try to strike a fairer balance in the interests of habitat and wildlife. I am not talking about the interests of landlords if that is what is worrying the Government. As the noble Baroness, Lady Young of Old Scone, will be aware, if no sanctions were established with regard to SSSIs, far more damage would occur. That is exactly what will happen on moors, open countryside and downland if no practical sanctions are established. We are not asking for draconian sanctions such as prison sentences; we are asking for some form of sanction that will bring to heel those who wish to break the law and make them accept that in the interests of conservation they cannot behave in such a fashion. We need to consider carefully the amendments proposed by my noble friend and the Government need to strike a fair balance and establish sanctions before the Bill finishes its passage through the House.
8.45 p.m.
Earl Peel: My Lords, I support the essence of my noble friend's amendments and I echo what my noble friend Lord Monro has said. I understand that the Government do not wish to criminalise access. However, there is no question in my mind that there is a major flaw in the Bill in that it has no bite. There is no recourse for the owner or manager against those who persistently ignore the provisions of Schedule 2 and Chapter II.
The by-laws, regulations and closure orders are in the Bill for a good reason. The Minister has constantly told us that the Countryside Agency or the access authorities will respond sensibly to requests for those measures. I am sure that he is right. However, the authorities will not impose those measures unless there is good reason for that. If there is a good reason, it seems to me logical that the owner should have recourse to the law to thwart those people who persistently ignore requests to leave the land in question.
The position established under the Bill is totally different from the one that exists at present. Substantial acreages of land are to be opened up to the public for the first time. I suggest that as a quid pro quo for that we need new sanctions to deal with the few people—I acknowledge that they will be few—who will ignore the regulations established by the Bill. If we fail to establish those sanctions, there is a very real possibility that the message that the public will glean from the Bill is, "If you break the rules, the owner can resort to the civil courts". However, that is ineffective

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and expensive. We should not forget that. I urge the Government to consider seriously how we can introduce into the Bill a measure which will enable owners and managers to impose some sanction against those who persistently ignore the provisions of Schedule 2 and Chapter II. As I say, I thoroughly understand and appreciate that the Government do not want to criminalise access. However, as I said, the Bill introduces new access provisions. We need new sanctions to deal with any problems that may arise from that.
Viscount Bledisloe: My Lords, I echo what the noble Earl, Lord Peel says. Unless there is some way to deal with people who break the rules, the owner's only resort will be to go to the access authority and say, "Look, my land is open for access. People persistently break the rules. I cannot stop them. Therefore please give me a closure order in order to restrict these people coming at night, with dogs and so on". The legitimate people who seek to exercise their rights in a responsible way will lose their right of access because the irresponsible people cannot be policed.
There must be some way of dealing with the irresponsible; otherwise, if the irresponsible cause damage, the owner will have a cast iron case for requesting the access authority to withdraw access. The owner may say that his lambs are being killed or his rare flora dug up; that he has no sanction; that he cannot find out who these people are and therefore the land must be closed. The result will be that the well behaved majority suffer as a consequence of the inability to control the irresponsible minority.
Lord Hardy of Wath: My Lords, I shall not oppose the Government on this issue. However, one point of the noble Lord's amendment deserves serious consideration. I refer to litter; it is a hobby horse of mine. I spend a good deal of my spare time collecting litter near my home. People throw glass into water where children swim. One person apparently has the hobby of de positing litter on the top of hills which the landlord or farmer has continually to remove. It is a national problem, not restricted to access areas. This is now by far the most common criminal offence in Britain for which there are only rarely prosecutions. Schools do not take quite so much care on this issue as they did when I was a schoolmaster. The schools were remarkably free of litter because the children had to pick it up. Now, apparently, that is a health and safety risk.
We need a culture change. Then the anxieties expressed by the noble Earl, Lord Peel, may be less acute. But unless there is an enforcement of law—it is largely ignored—the problem will not only continue but intensify. If the Government will not accept the amendment, I hope that they will consider seriously the need to challenge the growing problem that litter presents to this country which makes us by far the dirtiest country in western Europe.
Baroness Young of Old Scone: My Lords, I declare an interest as chairman of English Nature. I speak to
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Amendments Nos. 24 and 25. I wish to describe some specific circumstances. I am not sure whether these are the right amendments to deal with the issue. I support the concern underlying them. There is need for more strenuous penalties than even the welcome 72-hour exclusion for those occasions when someone persistently and wilfully infringes exclusions and restrictions introduced on nature conservation grounds under Clause 24.
This is not about making trespass a criminal offence. It is not about inadvertent infringements of Schedule 2; the proposed 72-hour exclusion is probably all that is required. This issue relates to wilful and persistent infringement of exclusions which have been brought into place only when there has been a clear conservation need identified and after considerable consultation.
The provisions in Part III of the Bill can be used to take action after damage to nature conservation has occurred. But we need some provision in the Bill to reinforce the importance of Clause 24 exclusions and restrictions for the prevention of damage before it occurs rather than after it happens. Some species are now restricted to a very small number of sites. Once the damage has occurred, the species have gone, and we do not have a second chance. I urge the Minister to ponder on the point of the exclusion restrict ions in Clause 24 if they can be persistently flouted.
I hope that the Minister will reconsider the issue of sanctions in specific cases of Clause 24 exclusions and restrictions. The very wide definition of access land was acceptable from a nature conservation point of view if there were adequate provisions for restrictions and exclusions to protect vulnerable sites. If those provisions cannot be enforced, it raises major questions about how wide the definition of access land should be.
Baroness Miller of Chilthorne Domer: My Lords, I cannot remember whether the noble Baroness, Lady Young of Old Scone, spoke when. I moved Amendment No. 98 in Committee. It addressed the problem to which she refers. The Government believed that by-laws adequately covered the situation.
There is a difficulty as regards continual offenders. A farmer may have a right of way across his fields. He finds that people persistently leave the right of way, picnic in his fields and leave litter. I have perhaps more sympathy with lowland farmers faced with that situation; it is more common. There may be larger numbers of people involved than on access land where the problem may be less serious. I wonder whether the noble Lord who moved the amendment would want to implement the provision on low land? That would involve a culture shift. We on these Benches would not be happy with that. It might begin to "criminalise" the situation more and more.
Education is an important factor. I accept that that will never deal with difficult and persistent offenders. Access authorities will need, first, to develop with their wardens means of addressing the problem; and, secondly, to consider whether by-laws should be

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introduced to deal with it. In the interest of equity, we must consider the same situation with regard to the lowlands.
Lord Bragg: My Lords, perhaps I may be permitted to offer a view that I believe to be important and generally relevant. I agree that it is essential that property is safeguarded, that damage is not done and that despoiling and destroying are discouraged.
However, I should like to put in a positive word for the large tribe of British ramblers who I fear are in some danger of being misrepresented. Like millions of others, and many of your Lordships I am sure, I have walked in many areas of this country, sometimes frustratingly restricted as in the Lake District, for instance, where it is possible to walk round less than 10 per cent of the lakes and, as we age, walking along the lake shore begins to be powerfully attractive. I have walked in the Lake District every year of my life since the age of about 15 and for part of my life have lived in the splendid gaunt landscape of the northern Fells. Over those years the ramblers I have met—there must have been thousands—have, outside your Lordships' House, been the best mannered, most cheerful, careful, wholly admirable people it is possible to imagine.
9 p.m.
Earl Peel: My Lords, I assure the noble Lord that none of the measures in the amendments is aimed at ramblers. We are talking about a few people who persistently ignore the regulations under Schedule 2 and Chapter II. I did not table the amendments, but I am sure that my noble friends who did so agree that they are not designed in any way to be anti-rambler. We are dealing with a few people who persistently ignore the regulations and rules under the Bill.
Lord Bragg: My Lords, I accept what the noble Earl has said, but it has been my impression during the course of our debates that, by association, ramblers have been rather misrepresented. I continue with my point.
The first aim of the ramblers whom I know is to keep the countryside as beautiful, tidy and varied as they find it. In my view they are its greatest supporters. Their second aim in most cases is to attempt to lift restrictions and challenge oppositions that needlessly and truculently constrain a peaceful, quiet and healthy pleasure. I repeat my fear that they are in danger of being tainted by association. Once again, I recognise that there must be laws, but the British rambler is in danger of being presented as a thoughtless, uncaring menace, particularly when it begins to get dark. That is not my experience or the experience of many others. I wish to register that point.
Lord Glentoran: My Lords, I moved the amendment and I take serious offence at what the noble Lord, Lord Bragg, is saying. I greatly respect him in his professional life, but I do not know where his conclusions come from. I do not know how long he spent in the Chamber during the six days that we
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considered the Bill in Committee, but I assure him that his conclusions about how ramblers are thought of are utterly false. I have said several times that I have given a large part of my life to introducing young people to the countryside. We have paid many compliments and tributes to ramblers and the Ramblers Association for all the good things that they have done. I ask the noble Lord, Lord Bragg, to admit that some of his conclusions may be wrong.
Lord McIntosh of Haringey: My Lords, these relatively straightforward amendments have been exaggerated—I do not mean by my noble friend Lord Bragg. Your Lordships seem to have a fundamental problem with the criminal law. Some of your Lordships seem to think that it is possible to pass laws that will prevent people committing crimes. The law has never been able to do that. It can punish people who commit crimes and other laws not connected with the criminal law can sometimes assist in the prevention of crime. Action by government, local government and citizens can sometimes assist in the prevention of crime, but a crime cannot be prevented by passing a law to say that it is illegal.
Lord Glentoran: My Lords, I am not sure why the Minister is saying this. I intervened when the noble Lord, Lord Bragg, spoke to correct some points that he was making about ramblers. It had nothing to do with the criminal law or any other aspect of the amendments.
Lord McIntosh of Haringey: My Lords, I was making a few introductory remarks to my response on the amendments. I hope that the House would wish me to do that. I was not intervening on behalf of my noble friend; I was responding to the debate. I thought that that was called for—indeed, I still think so.
We spent a considerable time in Committee debating whether a criminal penalty should apply to a breach of the general restrictions or those imposed under Chapter II. Amendment No. 24 would create a slightly different offence, which would not apply to a breach of the restriction. The offence would apply when a person did not obey an instruction from someone with lawful authority to enforce Schedule 2 or Chapter II restrictions.
If a user breaches the restrictions, the landowner and any warden will be entitled to require them to leave. They will lose the right of access. If someone is inadvertently in breach of a restriction, no doubt they will refrain from the breach once it is pointed out. The landowner may decide to take no further action, but he will still be entitled to ask them to leave.
The amendment would put wardens, landowners and their agents in possibly an even more powerful position than police officers, by making any refusal to obey their instructions a criminal offence. It can never be justifiable to give private individuals greater powers than the police in that way. The amendment would criminalise trespass. When we debated night access, the noble Viscount, Lord Bledisloe, vehemently denied that he sought to criminalise trespass. He denied the

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accusation that he was turning walkers into potential criminals. The amendments would do that, so I hope that the noble Viscount will not vote for them if they are put to the test in the House, because that would go against what he has told the House in the past couple of hours.
In many cases, a breach of a restriction will additionally be a criminal offence. When it is not a criminal offence we do not wish to make it so by adopting a blanket approach. If there are particular problems, by-laws are the appropriate tool. They allow measures to be targeted and they allow for consultation, which is appropriate, given that a new criminal offence is to be created.
Amendment No. 25 would provide that the access authority may seek an exclusion order following an application by the owner, as well as of its own accord. We agree that some criminal acts may cause particular harm or damage to someone or something on access land. In such cases, it may be highly desirable to ensure that the offender has no right of return to the access land in question for a substantial period. The provisions to be inserted in the Powers of Criminal Courts (Sentencing) Act 2000 by the Criminal Justice and Court Services Bill, which had a chequered passage through your Lordships' House yesterday, are the best way to address that requirement. They set out a special process with specific procedures; for example, the obtaining of pre-sentence reports and preconditions for the imposition of such an order.
However, it would not be appropriate for these provisions to deal with what may be minor breaches of restrictions. Exclusion orders are meant to deal with criminal offences which may attract a sentence of imprisonment and which are sufficiently grave to justify excluding the offender from a place or area. Classically, they have been used where there have been threats of violence and where someone is in fear of his life, safety, property, family or whatever from someone who has committed an offence. As under Section 40A of the Act as amended by the Criminal Justice and Court Services Bill, exclusion orders are designed for those who commit criminal offences. It is not clear how an authority would know that someone had repeatedly breached a restriction. It is likely that any such provision would be extremely difficult to apply in practice.
Exclusion orders may be a useful tool in a small number of circumstances where a serious offence takes place on access land and where excluding the offender from such land would serve a useful purpose in preventing further criminal behaviour. However, such powers should be used sparingly and should be subject to the careful procedures which will be set out in the Powers of Criminal Courts (Sentencing) Act. We do not believe that they should apply, as these amendments would provide, where breaches of a restriction have taken place, no matter how minor.
Where threatened or repeated trespass takes place, landowners may apply for injunctions, just as they may at present. Such injunctions will be far easier to obtain than exclusion orders, which would have to be sought through the criminal courts.
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I turn now to Amendment No. 26.
Viscount Bledisloe: My Lords, before the noble Lord continues, he has, I am sure inadvertently, wholly misrepresented what I said. With the leave of the House, perhaps I may he allowed the opportunity to put him right.
I replied to the point made by the noble Baroness, Lady Miller, who said that the amendments should state that those who exercise the right of access are likely to be criminals. I said nothing of the kind. I explained to her our view that criminals might use the right as a method of masquerading as genuine people. I have never suggested, and do not suggest, that those who persistently—I emphasise that word—disregard the rules and flaunt the system which the Government have imposed should be treated as criminals. I did not say anything of the kind and I should be grateful if the noble Lord were a little more careful in describing my language.
Lord McIntosh of Haringey: My Lords, the record will show both the exchange between the noble Baroness, Lady Miller, and the noble Viscount, Lord Bledisloe, and that between the noble Viscount, Lord Bledisloe, and myself. I only said that he vehemently resisted the idea that under certain circumstances walkers were being turned into criminals. I say that under certain circumstances these amendments would provide that trespass would become a criminal offence, in addition to the existing criminal offences. They would do so in a way which is not provided anywhere else in our criminal law.
Perhaps I may return to Amendment No. 26. Again, we debated the question of whether a criminal penalty should apply to a breach of the general restrictions or restrictions imposed under Chapter II. We explained that we do not agree that simple trespass, even if it occurs on two or more occasions, should be a criminal offence—that is the crux of the matter so far as concerns the noble Viscount, Lord Bledisloe, and I—subject to a fine of up to £200. That would be the effect of Amendment No. 26. It would make trespass a criminal offence.
The sanctions available to landowners against those who trespass on their land under the new right are no different from those currently used against trespassers. They may require the person to leave the land and, if necessary, may seek an order of the court to prevent a repetition. If damage is done to the land, or to property on the land, damages may be obtained. In itself, trespass has never been a criminal offence, even throughout the past two centuries when large landowners, both Whig and Tory, dominated the membership of your Lordships' House. Trespass has never been a criminal offence. We see no reason to make it an offence on open countryside. That would place owners of open countryside in a more favourable position than landowners generally.
A person in breach of a restriction will cease to have the benefit of the statutory right for the next 72 hours. As I said, they could be asked to leave the land. Landowners will be able to seek injunctions against

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those who trespass repeatedly or who threaten to do so, and the existing law will continue to apply in cases of aggravated trespass. Breaches of restrictions which cause harm or damage are likely to constitute a criminal offence. Tougher penalties are already in place for such breaches than those proposed by these amendments.
I turn to the issue of breach of conservation restrictions. Under Part III of the Bill it is a new criminal offence intentionally or recklessly to damage an SSSI, subject to a £20,000 fine in a magistrates' court or an unlimited fine in a Crown Court. The Government have tabled a new power for English Nature to make by-laws to protect any SSSI. By-laws can already be made to protect European conservation sites. Where a serious problem exists, the land can be wholly excluded from access, if necessary, by direction under Chapter 2.
The noble Lord, Lord Monro, asked about a fair balance. There is a fair balance in this Bill. There are no criminal sanctions applied to landowners who obstruct or deny access under Part I other than the exceptional circumstances of the breach of a court order under Clause 37 or the deliberate erection of a misleading sign under Clause 14.
Walkers, on the other hand, will continue to be, as they have always been, subject to the existing criminal law.
My noble friend Lord Hardy asked about litter. Leaving litter on access land will be a criminal offence under the Environmental Protection Act 1990, as it has always been.
The noble Viscount, Lord Bledisloe, made a point about persistent offenders. I do not apologise for returning to it, but if there are areas where there are persistent offenders and problems with enforcement the access authority can appoint wardens to target that area, and we would expect them to do exactly that.
With all of these protections that exist for actual offences, I cannot believe that it is right, directly or indirectly, to overturn many tens or hundreds of years of the existing law on trespass and criminal law in order to criminalise trespass. That is what these amendments would do.
Baroness Carnegy of Lour: My Lords, is the Minister going to respond to the noble Baroness, Lady Young of Old Scone, who has been thinking a great deal about this and has something to say?
Lord McIntosh of Haringey: My Lords, I did respond in part. The noble Baroness made a point about trespass on to excluded land, conservation exclusions. English Nature has powers to make bylaws over national nature reserves and European sites, and they will be extended to cover SSSIs. These by-laws can prohibit mere entry on to a site. Currently, only a few English Nature by-laws have been made on
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nature reserves and none has been made on European sites. It suggests that entry on to closed sites is not currently a problem.
Lord Glentoran: My Lords, I have heard what the noble Lord, Lord McIntosh, has said in regard to these amendments.
I want to make one or more points very clearly. I understand what he is saying about creating a criminal offence for trespass. That is not our intention. I do not believe that that would be right. I agree entirely with the noble Lord on that. However, I believe that part of the objective of these amendments—particularly Amendment No. 24—is that there should be something in the code books or on the face of the Bill which reminds people that wardens or managers have a responsibility, supported in law, should people offend the codes or rules. I think that is important.
What is more important, and was supported to some degree or another on all sides of the House, if I may quote the noble Baroness, Lady Young of Old Scone, is that Amendments Nos. 25 and 26 are not about ordinary people making mistakes. They are about persistent offenders. I made that point very strongly. I emphasised the word "persistent" when I introduced the amendments. The purpose of Amendments Nos. 25 and 26 is to ask the Government to find a way on the face of the Bill to assist the management of persistent offenders. Those persistent offenders could be as bad as the person who drives some sort of quad bike round and round on some access ground on a regular basis until he is thrown off.
As I understand it, the noble Lord, Lord McIntosh, said that the new criminal justice Bill could be used in this way to help this situation.
Lord McIntosh of Haringey: My Lords, one has to be very careful about that. The noble Lord, Lord Glentoran, should read Section 40A that is introduced into the 1990 Act by the Criminal Justice and Court Services Bill. Then he should consider whether that Bill is likely to be changed further in its passage through Parliament. I do not think the noble Lord should rely on it at the moment.
Lord Glentoran: My Lords, I thank the Minister for that intervention. Certainly, I accept the advice.
I leave the House with the point that all of us, except the Government Front Bench, believe that at this moment there is a need for stronger sanctions against the persistent quasi-criminal offender within access areas. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 25 and 26 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 27:
Page 2, leave out line 41.
On Question, amendment agreed to.
[Amendments Nos. 28 and 29 not moved.]
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 30:
After Clause 2, insert the following new clause—

Countryside and Rights of Way Bill

  INTENTION TO REMAIN ON ACCESS LAND: OBLIGATION TO GIVE NOTICE
  (" .—(1) A person who intends to enter or to remain on access land during any part of the period from one hour after sunset on one day to one hour before sunrise on the following day shall give prior notice of that intention to the access authority.
  (2) The access authority shall take such steps as seem to it appropriate and practicable to—

  (a) communicate to any person giving such notice information as to restrictions relating to, and activities to be carried out on, such land, and

  (b) enable owners and other persons interested in access land to obtain information as to notices which have been given.").

  The noble Lord said: My Lords, the purpose of this new clause is to ensure that a person who intends to enter or remain on access land at night gives prior notice to the access authority. That is covered in subsection (1).
  Subsection (2) seeks to ensure that the access authority informs such a person of any restrictions in force or activities taking place on the land and ensures that owners and other interested persons are told of those who have given notice of their intended nocturnal visit.
  As the House will have concluded, this is a clause of last resort as regards night access. It is minimalist in its requirements. I hope that noble Lords on the Liberal Benches may give it some favourable consideration, if only to pacify Mr Colin Breed, the Member for South East Cornwall, who is, I understand, the Liberal spokesman on agriculture, rural affairs and fisheries. He appeared in a forum organised by the Countryside Alliance on Thursday, 19th October, and declared himself against night access. So perhaps we may have some consistency in the Liberal ranks. I invite Liberal support for my proposed new clause.
  It was ma de clear in Committee, when I tabled a similar but less comprehensive amendment, that it was the safety of night visitors that I had first and foremost in mind. That is still the case. With due respect to the noble Baroness, Lady Nicol, who is not here at the moment, I referred to some 265 accidents that occur annually in Snowdonia. Out of respect for the noble Baroness, I shall not repeat any of the tangential facts relating to that.
  In the course of our discussion in Committee, various other proper and very valid concerns were raised and the proposed new clause seeks to take account of them. For example, there was the concern of owners and managers highlighted by the noble Viscount, Lord Bledisloe, in another amendment in Committee and again, of course, today. And there was concern about the safety of property, livestock, ground-nesting birds and so on. There was concern too about tamping and operations against foxes.
  My point is that all those concerns, which are very extensive, as the Government know, would be greatly reduced by knowledge of the presence and identity of those wandering in access land after dark.
  The new clause gives a statutory basis for what is accepted as good practice; namely, giving advance notice of a night visit to an area which may involve hazards of one kind or another. That good practice was referred to by a number of your Lordships, including the noble Lord, Lord Dubs, in the course of our discussions.
  Reputable organisations advise their members to give prior notice of their intentions and likely whereabouts on night ventures at the places where they stay—hotels and so on—or to local rescue teams. That is a sensible precaution and the Government would be wise to give it statutory form, especially as the area open to access will be considerably increased. The Government are going wrong by considering things as they are without taking into account the significant extension of access land and, possibly, the increased numbers using it.
  Lord Greaves: My Lords, what is one supposed to do if one is already on access land and, because it is a glorious day and will be a glorious night, one decides to stay—even though one did not intend to do so beforehand?
  Lord Roberts of Conwy: My Lords, the same rule applies. If it is likely that a person will stay overnight on access land, he should give that information to the authority.
  I am not greatly concerned with the popular nocturnal visitor spots. The noble Lord, Lord Greaves, mentioned Snowdon in Committee. I am concerned about the less well-known locations which will be open to access and which are comparatively unexplored by walkers. Members of reputable organisations can be trusted to take the necessary precautions. I am concerned about less-experienced groups who may venture forth at night without a proper assessment of risk and may end up in tragic circumstances that could have been avoided had they had the foresight to give prior notice to knowledgeable people. Who better to inform than the access authority, which would tell the landowner and other interested parties
  Everything I have heard since the Bill came before the House confirms my view that we should establish and develop the good practice envisaged in the proposed new clause. In Committee, noble Lords indicated that it was the general practice of organisations for ramblers, climbers and so on to give prior notice of their intention to be on a mountain or in other hazardous places at night.
  It is only a matter of days since a group of Italian soldiers became lost on the Brecon Beacons. They gave a wrong map reference to their would-be rescuers who spent nine hours searching for them. One soldier was taken to hospital suffering from hypothermia after a night in the open. If that can happen to soldiers on a planned military exercise, I do not hold out much chance for ill-equipped young people or other civilians on an unplanned night foray—although I am sure that the noble Lord, Lord Greaves, is quite capable of taking care of himself.

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  I have no doubt that tragic occurrences would be fewer if the proposed new clause were in place and access authorities and wardens were given prior notice. Safety has a high priority in almost every sphere of life these days—be it rail travel or eating beefburgers. It would be remiss of the Government to ensure public safety on racing gallops but ignore it on access land. Why is there a difference? Maybe the Government are afraid of being accused of nannying, but I do not believe that that can be the case.
  There is no penalty on an access authority or an individual for failure to comply with the requirements of the new clause. As I said, it is an attempt to give statutory backing to current best practice, to improve safety at night for those who venture on to access land and to ensure the safety of property and livestock on access land. I can assure the Government that people will sleep sounder if they know who is on the mountain, heath, down or moorland near their home. I urge the Government to give this last-resort clause on night access a sympathetic hearing.
  9.30 p.m.
  Viscount Bledisloe: My Lords, my name should appear to this amendment, but for some administrative reason it does not.
  My first point is that if people are to be given access to open land at night, it is highly desirable that someone should know who is on the land. This amendment contemplates a simple telephone system to be set up by the access authority so that anyone venturing out at night can leave a message to say who he is, how many are in his party and where they are going. The amendment was deliberately designed to say that because in Committee the noble Lord, Lord Greaves, raised the point of someone not deciding whether to go out at night until late in the afternoon as he wanted to see what the weather would be like.
  The noble Lord, Lord Greaves, has now raised a further point: what happens if someone wants to stay out? Last time he told the House that it was irresponsible to stay out at night on the mountains without having deposited a plan and told people where one was going and when one was returning. In these days of modern technology, it would not be difficult for the noble Lord, Lord Greaves, to pick up a mobile telephone and to tell the access authority that he was staying out.
  Lord Greaves: My Lords, I wonder why the noble Viscount assumes that I have a mobile telephone.
  Viscount Bledisloe: My Lords, the noble Lord, Lord Greaves, has impressed upon us how enormously responsible a climber and a walker he is, and as he has told us that he would not dream of being out at night on a hill without someone knowing where he was I assume that if he was liable to change his mind at the last moment he would carry the wherewithal to communicate that fact. This legislation cannot be designed around the eccentricities of one noble Lord!
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  Secondly, under this amendment such a telephone system would enable the caller to hear information about any special problems notified to the authority. There may be work in progress on the land or trenches dug that they could be told about. Night lamping may be taking place or there may be restrictions due to lambing. When someone telephoned to say that they intended visiting a particular site, there could be a recorded message saying that on such and such land there was a restriction.
  Thirdly, an owner could access the telephone system and discover whether people had given notice that they would be on his land that night. Also an owner seeing or hearing movement on his land could check whether legitimate walkers had given notice.
  This amendment has been designed carefully to answer all the difficulties that were raised in Committee. I venture to hope that the Government will regard the amendment as a sensible way of dealing with the problem of the information that is needed if there is to be night access.
  Lord Judd: My Lords, the word "bizarre" has just been bandied around and I hope that I can introduce the word "philistine". The thought of the countryside being littered with people carrying mobile telephones ringing in to say where they are fills me with dismay. What are we turning our countryside into?
  The problem which arises from the amendment concerns the cost. If the provision is to work well, it will be an extremely costly exercise. The information which will be needed at the control point must be assembled and the means must be found to disperse it to everyone who needs it. The question which the noble Lord did not answer in moving the amendment was what on earth the people receiving the information will do with it.
  If we were introducing some draconian rule, I would resist it. I am happy to plead guilty to being pleased to share with the noble Lord, Lord Greaves, the eccentricity of his approach to the countryside; I find myself very much at one with it. Certain things may be desirable in terms of responsible conduct. But it is also true that if we are enjoying the countryside, trying to act as responsibly as possible, we make spontaneous decisions about what is possible on a particularly lovely night in a wonderful situation. It would be a nightmare at that point to find ourselves curbed by all kinds of restrictions and legal requirements.
  The issue is: what would be done with the information? Is the cost justified? Surely, the money which would go into such an exercise could help landowners in a host of other ways; for example, erecting stiles, providing wardens and so forth for the positive management of the countryside. From the way in which the amendment has been tabled, I do not begin to understand why it is a priority that is preoccupying us at this hour of the night.
  Baroness Miller of Chilthorne Domer: My Lords, perhaps I may first address the issue of consistency which the noble Lord, Lord Roberts, accused the

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  Liberal Democrat Benches of lacking. I am somewhat tempted to think that envy prompted that observation because our very consistency and persistence in both Houses has resulted in a large number of our amendments being accepted. I shall not take up the time of the House by listing them, but I must say that it is a remarkable number of which we are proud. I do not believe that we have the slightest record of inconsistency.
  If I were to stay on the theme of inconsistency, I should have to remind the Conservative Benches how inconsistent they were on, for example, the AONB issue when in the other place they vociferously asked for it to be on the face of the Bill only to tear it apart when it came to this place. Therefore, I should not like to place too much weight on the consistency argument.
  Turning to the amendment, it would be extra ordinary to envisage how it might work. I declare an interest as a Somerset county councillor with experience of an access authority. Everything about the amendment makes it unworkable. For example, if the landowner failed to telephone the access authority to communicate an activity being undertaken on the land, who would be liable for the access authority then not being able to tell the person who telephoned that such an activity could take place? Would it be the landowner or the access authority?
  The noble Lord, Lord Judd, raised the issue of the number of people required to operate the system. In the summer, even in a county such as Somerset which has a relatively restricted area of access land mainly in the Quantocks and Exmoor, a large number of telephone calls would be made from landowners to the access authority and from people intending to walk. The proposal is completely unworkable.
  I understand the point which the noble Lord, Lord Roberts, made about safety and of course it is important. But the fact is, as was debated in Committee, responsible people going on to access land to undertake activities usually leave a route plan with friends, family or at their hotel. Obviously, they should be encouraged to continue to do so and perhaps to do so more often. However, it is no good laying the responsibility on to national parks and county councils, which already deal with a plethora of immediate emergency situations. If this week during the floods in Somerset people had been telephoning the authority to report that they were thinking of going for a walk on top of Dundry Beacon, we would not have regarded it as a good use of staff time. We cannot therefore support the amendment.
  Lord Hardy of Wath: My Lords, I say a few words which in part reflect my experience as a schoolmaster. I am not unduly worried about Italian soldiers in the Brecon Beacons, who would probably receive a campaign decoration as a result. One is concerned here with young people. I do not know whether the Government agree with the amendment moved by the noble Lord, Lord Roberts. However, the subject-matter of the amendment should be given serious consideration. Even if the Government do not pay heed to it, before the Bill is implemented they must
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  ensure that either the department or the voluntary bodies concerned issue a clear code of conduct which spells out what every education authority and organisation responsible for young people must do. Too often children have been injured or killed because leadership has not been of the highest standard.
  One must also consider cost. Not many people have worked out the cost of sending helicopters to rescue people, who in some cases should have more sense. We do not have very high mountains in this country, but we have desolate areas which can be extremely cold and dangerous. Children should not be taken into those areas unless schools, education authorities and young people's organisations adequately brief, and set out the terms of conduct for, those who lead such parties.
  Baroness Carnegy of Lour: My Lords, I hope that the noble Lord does not believe that education authorities take out young people without saying where they intend to go and obtaining permission for the trip. That is not my experience. No voluntary youth organisation or Duke of Edinburgh Award scheme would do it either. Those are not the kinds of organisations that one has in mind here.
  In response to the noble Viscount, Lord Bledisloe, if the high mountains and hills of England and Wales are anything like the Angus glens, mobile telephones simply will not work there.
  Lord Mancroft: My Lords, this Bill gives rise to a number of difficult issues which noble Lords have debated piece by piece at Committee stage and this evening. Probably the issue which causes the greatest difficulty on all sides of the House, but perhaps from different angles, is night access. I and my noble friends and other noble Lords, including the noble Lord, Lord Hardy of Wath, were concerned at both Second Reading and Committee stage about night access. The Government believe that this is a matter of principle. If there is a principle, it is a fairly weak and pathetic one. I do not understand the principle, despite the fact that it has been explained several times. The noble Lord, Lord Whitty, explained it to me outside the House last night. I believe that at the end I thanked him very much but said that I still did not understand it. Nevertheless, the Government regard it is an important principle.
  However, if the Government want this important Bill they must understand that a large number of noble Lords have a real problem about night access. It would be a constructive move to find some way out of the problem without compromising the Government's principle. The Government should have their business, although God alone knows why.
  When noble Lords discussed this matter in Committee my noble friend Lord Jopling (who I am pleased to see is back in his place) put forward the idea that a walker, rambler or whoever should inform someone. I believe that at that stage Members of the Committee on all sides regarded it as a new and interesting idea. Therefore, the proposal of my noble

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  friend Lord Roberts is the son-of-Jopling amendment, as it were, and takes the whole matter further forward. For that reason, if for no other, it is an interesting idea.
  A number of noble Lords have raised practical problems about how the system will work by the use of mobile telephones. My noble friend Lady Carnegy said that mobile telephones did not work in Angus. Certainly, mobile telephones work fairly well in most places in the south and north of England. But it should not be forgotten that that is only if you are on a hill. If you informed people before you went, presumably you will not be on the hill when you make your telephone call, unless you are the noble Lord, Lord Greaves, or Italian soldiers. Presumably, they do not have sleeping bags and the noble Lord, Lord Greaves, does have a sleeping bag. Or if he does not have a sleeping bag with him to enable him to spend the night, presumably he did not intend to go on that access land at night. If he did not intend that then he does not need to inform anyone anyway under this clause. So there is not a problem.
  9.45 p.m.
  Lord Greaves: My Lords, given that it is dark at half-past three in the middle of December, does the noble Lord accept that I may actually stay after darkness without needing a sleeping bag because I may be back at home by one o'clock in the morning in time to go to my own bed?
  Lord Mancroft: My Lords, it is entirely possible that the noble Lord, Lord Greaves, will go climbing in Snowdonia in November or December without any means of protection from the weather. In which case I suspect he will end up like our Italian friends. He is raising unnecessary issues here which can be overcome. The reality is that this system can work. The noble Lord, Lord Judd, raised some issues about communication possibilities, as did the noble Lord, Lord Greaves. But the reality is that, with modern communications, information of this kind can be given to local and access authorities for them to process. With modern computers and with modern technology that is really not difficult, nor is it expensive. So get around that one. The practicalities are there in this day and age. We can do it.
  Lord Judd: My Lords, I referred to the possibility of a nightmare. Will the noble Lord accept that for many of those wishing to enjoy the countryside, the whole purpose is to get away from all the encumbrances and paraphernalia that go with modern technology and enjoy—at least for a brief spate of time—something totally different? Are the speakers to the proposed amendment trying to enforce technology and all technology's culture into the peace of the countryside?
  Lord Mancroft: No, my Lords. I think that the noble Lord, Lord Judd, is getting a little over-excited about the matter. I, too, live in the countryside and I appreciate it without technology. But when people make a mistake and get into trouble they expect
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  modern technology with its whirly blades to come and get them out. We would love to go into the countryside without technology, but in this day and age we balance these things. We want the ambulance and the helicopter to come quickly enough when we are in trouble. What we are trying to do here is not to get angry about it, but to find a happy medium way forward.
  My noble friend Lord Roberts raised the issue of the forum of the Countryside Alliance conference last week at which Mr Colin Breed spoke. I have already declared an interest to your Lordships—I am happy to do so again—as a director of the Countryside Alliance. I chaired that forum. Not only was Mr Colin Breed of the Liberal Democrats part of that forum, but we were delighted that the Minister for the Environment, Mr Michael Meacher—whose Bill we are discussing today—was part of that forum. I listened very carefully to what the noble Baroness, Lady Miller, said. I was amazed when she told us that Mr Colin Breed was not responsible for this brief in the other place on behalf of her party because he told me and the other 600 people at the conference—luckily it is on tape so we shall be able to see it on the screen—that he did have the responsibility. He told the conference that it was very much the Liberal Democrat policy that they were deeply concerned about night access. I may have got that wrong. We will ask the other 599. But he made that point very strongly, which is why I was amazed, as was my noble friend Lord Roberts.
  I have gone on too long and I apologise to the House. The Minister, Mr Meacher, was part of that forum. One of the issues that was discussed for quite a time with Mr Breed, Mr Meacher and a number of others was the issue of night access. When it was suggested that walkers would have an obligation to inform the relevant authority, as proposed in the amendment, the Minister, Mr Meacher, thought it was a very interesting idea and well worth looking at because it may be a way to get out of this muddle. We are in a muddle. My noble friend has suggested a way out of it. I rather hope the Government will take it more seriously than they have some of the other suggestions.
  Lord McIntosh of Haringey: My Lords, this is a balanced amendment. Subsection (1) provides that a person who intends to enter or to remain on access land at night should give prior notice of his intention to the access authority. Subsection (2) provides that the access authority should, in turn, give to any person giving such notice information about restrictions and activities and should enable owners to obtain information as to the notices which have been given. It works both ways, and I give credit to the noble Lord, Lord Roberts, for that.
  As to the first part of the amendment, we had a lengthy debate on the matter earlier today. The Government put forward the view that night access was comparable to day access and that no general restrictions should apply to night access which do not apply to day access. The debate covered a whole range of issues about night access, including the safety of

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  people enjoying the right to night access as well as of those living on or owning access land. At the conclusion of the debate the House decided that amendments which would restrict night access should not be accepted. On that basis, if your Lordships will forgive me, I shall not repeat the arguments on night access generally or even on safety of night access. I consider that they have been adequately aired and that the issue raised in subsection (1) of the amendment has already been resolved.
  The issue raised in subsection (2) is an interesting and worthwhile one. I am grateful to the noble Lord, Lord Roberts, for raising it. My noble friend Lord Hardy put it very well when he called for a code of conduct. Government Amendment No. 104 provides exactly that. It places a duty on the countryside bodies to issue a code of conduct and take other steps to provide information. We would expect the code of conduct to give guidance on safety issues, including safety at night.
  Baroness Miller of Chilthorne Domer: My Lords, I hesitate to interrupt the Minister. But, given all the comments to which the Liberal Democrat Benches have been subjected, does the noble Lord agree that the amendment was brought forward by the Government in response to the amendment that we tabled in Committee?
  Lord McIntosh of Haringey: Yes, my Lords. This is a listening Government. There are occasions when we listen to Conservatives too! However, we consider that the issue of night access generally has been adequately aired.
  We support the thrust behind the second part of Amendment No. 30. Government Amendment No. 104 gives effect to that. On that basis, I hope that the noble Lord, Lord Roberts, will see fit to withdraw the amendment.
  Lord Roberts of Conwy: My Lords, I am grateful to the Minister for that helpful and gracious reply. I am also grateful to all those who have taken part in this interesting debate. I am glad that the noble Lord fully appreciates the thrust of subsection (2) of Amendment No. 30. It may be that when we come to discuss Amendment No. 104 he will be able to cast even more light on what he hopes the guidelines will contain.
  We have had a reasonable debate and a promise from the Minister that the guidelines will cover my basic point in subsection (2). Meanwhile, pending further developments—
  Lord McIntosh of Haringey: My Lords, I would not wish to be misunderstood. The guidelines will cover safety at night. I am not saying that they will cover the provision of information in individual cases, as provided by subsection (2) of Amendment No. 30.
  Lord Roberts of Conwy: My Lords, the Government have been known to respond to various arguments that have been put forward. Clearly, my new clause has certainly been considered by the Government. They
  1052
  have referred to their Amendment No. 104. It may well be that there will be some further development in government thinking. Therefore, on the understanding that I may come back to the matter at a later stage if needs be, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Schedule 2 [Restrictions to be observed by persons exercising right of access]:
  Lord Whitty Lord Whitty moved Amendment No. 31:
  Page 64, line 19, leave out from ("not") to end of line and insert ("entitle a person to be on any land if, in or on that land, he—").
  The noble Lord said: My Lords, I beg to move Amendment No. 31 and speak also to Amendments Nos. 33, 36, 44, 48, 148 and 149 tabled in my name in this grouping.
  Amendment No. 31, together with Amendments Nos. 44 and 48, makes minor drafting changes to ensure that Schedule 1 is consistent with the words in Clause 2(1) which deals with the loss of right of access. Government Amendment No. 33 relates to the feeding of livestock and adds that to the list of restricted activities set out in Schedule 2. We consider the amendment superior to Amendment No. 38, which deals with broadly the same subject.
  Government Amendment No. 36 adds a new restriction of interfering with,
  "any fence, barrier or other device designed to prevent accidents to people or to enclose livestock".
  It provides that such interference would not be restricted if the person had "reasonable excuse", but it deals with the main offence. Again, Opposition Amendment No. 39 tabled in the name of the noble Baroness and others deals with a similar area, but we suggest that our amendment is preferable.
  I shall need to spend a little more time on Amendments Nos. 148 and 149. They relate to a recommendation made by the Select Committee on Delegated Powers and Deregulation, which made a number of recommendations relating to three areas covered in Part I of the Bill: the general restrictions in Schedule 2; the restrictions on dogs in the same schedule; and the use of the discretionary closure power in Clause 21. These amendments deal only with the first of these; namely, the general restrictions.
  The Select Committee was concerned that the power to vary Schedule 2 general restrictions could be used to remove restricted activities which could alter the balance of the Bill against the landowner. The committee accordingly recommended as its preferred option that the power should be deleted. We have considered this recommendation very carefully. On balance, we consider that the power to vary the restricted activities is a useful and important one. It will enable activities which have been overlooked or leisure pursuits which become popular at a later date to be added to the list. That said, we agree with the Select Committee that the power should be used sparingly. We have proposed therefore the Select Committee's alternative recommendation; namely, that such matters should be subject to affirmative

  1053
  resolution rather than negative resolution, as is currently provided for in the Bill. Amendments Nos. 148 and 149 will achieve that. I beg to move.
  Earl Peel: My Lords, perhaps I may speak to Amendments Nos. 34, 35 and 40 which have been grouped with the government amendments. I turn first to Amendment No. 34. Schedule 2 provides that any walker who indulges in,
  "hunting, shooting, fishing, trapping or snaring"
  on access land, or who,
  "has with him any engine, instrument or apparatus"
  for that purpose will be deemed a trespasser. However, the schedule does not specifically apply the same sanction to anyone who interferes with a snare or a trap, which was a point I raised in Committee.
  I believe that the Government should clarify the situation, ideally in Schedule 2, so that it is put on to the face of the Bill. Unfortunately, such interference is a common occurrence, causing immense irritation to farmers and keepers and wasting much valuable time. Someone who destroys a trap or snare would clearly be in breach of a regulation. I accept that. However, the status of someone who interferes with such an instrument remains unclear. There is a difference between the two. I should be grateful if the Minister could respond to that point.
  Ideally, I should like to see the word "interfering" put on to the face of the Bill in Schedule 2. Failing that, I hope that the Minister will, at the very least, confirm that interference with such an instrument will be specifically mentioned in the code of conduct. It should not be dealt with simply in the catch-all paragraphs 1(o) and (p).
  Turning to Amendment No. 35, the Minister kindly accepted my Amendment No. 111 in Committee, which sought to preclude anyone trapping anything on access land. However, the word "trapping" should have been included in a complementary amendment in order to preclude anyone having with them any instrument or apparatus for trapping. This is a drafting amendment which I feel confident the Minister will accept.
  The list of criminal activities covered by Amendment No. 40 were removed from Schedule 2 in another place and were embraced by paragraph 1(d) of Schedule 2, which covers all criminal offences. This is quite an important point. In Committee we discussed the potential lay-out of Schedule 2. We discussed which offences should be specifically mentioned and which offences should not. We also discussed whether it would be helpful to differentiate between those acts of trespass which are criminal and those which will be subject to civil law.
  I do not know whether the Minister has given this suggestion any further consideration. If he has not, presumably he will dismiss what I have just said. If he has, perhaps he may come forward with something which will be helpful to the lay-out of Schedule 2. I think that the noble Lord, Lord Greaves, also supported the suggestion at Committee stage.
  1054
  In view of the serious nature of the offences covered by the amendment—which were excluded from Schedule 2 in another place—can the Minister assure me that, if they are not to be mentioned in the schedule, they will be specifically referred to in the code of conduct?
  10 p.m.
  Lord Monson: My Lords, I have added my name to Amendments Nos. 38 and 39. I cannot, of course, speak for the noble Baroness, Lady Byford, but I am happy to accept the Government's alternative amendments—not least because they appear rather higher up on the list of prohibitions and are therefore slightly more likely to be spotted by members of the general public.
  I support Amendment No. 34, which has been brought forward by the noble Earl, Lord Peel. I do not think it is replicated anywhere else in the list of amendments. It is a much more significant amendment than it may appear at first glance. I also support Amendment No. 40.
  It may be that the Government will argue that the points made by the noble Earl are covered elsewhere—we shall have to wait for the Minister's reply—but certainly Amendment No. 34 is very important.
  Baroness Hamwee: My Lords, Amendment No. 37 in this grouping, which stands in my name and that of my noble friend Lady Miller, is, in a non-technical sense, consequential on government Amendment No. 36, which deals with interference with fences, barriers and so on. Very often the means of keeping people out, or warning them to keep out, is a notice rather than a fence. It seems to me that it is appropriate to put into this list of items,
  "interferes with any written warning or other notice".
  Your Lordships heard at the previous stage of the difficulties of maintaining notices on land. As many landowners will wish to give warnings where that may be appropriate, it is appropriate on our part to protect the existence of such notices.
  Lord Hardy of Wath: My Lords, perhaps I may offer one brief comment on the amendment of the noble Earl, Lord Peel. If the Minister is to act on the noble Earl's advice, will he insert either the word "legal" or "legitimate" before "traps"?
  I know that the noble Earl would not dream of using gin traps on his land, but some people still do. Not all that many years ago there was a gin trap placed on a child's nature trail in South Yorkshire. Some people still use traps which are banned under the 1981 Act. If I saw such an illegal trap, I should move it. I would not wish to be prosecuted for doing so. I hope that the question of the legitimacy of the trap will be considered in any of my noble friend's comments or actions.
  The Duke of Montrose: My Lords, if I am not mistaken, government Amendment No. 33 was tabled in response to an amendment brought forward in

  1055
  Committee by myself and the noble Lords, Lord Soulsby and Lord Plumb, to do with the introduction of disease factors into rural areas. In this case, the amendment deals with the feeding of animals— presumably in response to the question of infection carried to pigs. This provision helps to deal with the question of introducing viruses.
  The amendment that we debated in Committee sought to include a reference to the introduction of parasites as a result of dogs being improperly dosed. At present, no other amendment on the Marshalled List deals with the subject. If the Government do not intend to bring forward a provision, we may return to the matter at Third Reading.
  Baroness Carnegy of Lour: My Lords, when the Minister replies, will he say a little more about Amendments Nos. 148 and 149? He skipped lightly over them and said that the Delegated Powers and Deregulation Committee had stated that the regulation provisions were tipped too strongly against farmers and landowners. The Government seem to have disagreed with the committee in wanting to tip them that way, which is rather unusual. Will the Minister tell the House exactly what are the implications of that?
  Lord Luke: My Lords, I shall speak to Amendments Nos. 38 and 39. I agree entirely with what the noble Lord, Lord Monson, said about Amendment No. 38. Government Amendment No. 33 is much better worded than ours, so I shall not move it.
  The Minister briefly mentioned Amendment No. 39. We have a certain amount of doubt about the government amendment. The current list of restrictions appears to omit any reference to interference with mineshaft covers, fences, etc, designed to safeguard the public. The wording of our amendment is lifted straight from the precedent in the Peak District national park by-laws for access agreement land. Tampering may not involve criminal damage, so would not be covered by the general prohibition on criminal activity on access land. I should like to hear more about that from the Minister.
  Lord Whitty: My Lords, perhaps I may deal first with the point made by the noble Baroness, Lady Carnegy of Lour. The Select Committee indicated that it thought that these powers would allow us, by regulation, to remove restricted activities as well as add restricted activities and accordingly recommended that the power should be deleted. We considered that that would mean that the Bill could not be updated. For example, had this Bill been passed 15 years ago, it would not have included a reference to hang-gliding, and it might well have included reference to certain activities that no longer occur in the countryside. We felt that in order to keep the Bill up to date we needed some way of dealing with that situation by regulation.
  The Select Committee said that if the House disagreed with the recommendation, these powers should be subject to affirmative resolution. We have adopted that position rather than the first position
  1056
  proposed by the Select Committee. That perhaps explains the position. The noble Baroness is right: we have not accepted the initial advice, but we have accepted the alternative advice from the committee.
  In relation to Amendment No. 34 tabled by the noble Earl, Lord Peel, it is clear to us that if paragraphs 1(o) and 1(p) are taken together—paragraph 1(p) refers to "disturbance"—that must include interference. We therefore do not think that an additional reference to interference on the face of the Bill is necessary. If that needs clarifying in subsequent codes, we shall consider doing so; however, I believe that the point is fully covered in the schedule as it stands.
  Amendment No. 35 refers to trapping. I accept that, logically, we should include trapping. I can reassure my noble friend Lord Hardy—who I would hate to see charged with a criminal offence—that all these activities relate to activities being carried out lawfully. Therefore, there is no need to repeat that in this context.
  In Amendment No. 40, the noble Earl, Lord Peel, seeks to reinstate the restrictions that were deleted on Report. Instead of picking out particular criminal activities, we have placed the reference to "any criminal activity" in the schedule. That is not perhaps quite as tidy as we would wish because the other offences in the schedule are basically similar, although some could become criminal offences—such as the destroying of an egg. However, the blanket reference to all criminal offences subsumes all those that are suggested in Amendment No. 40. The remaining specified offences are, essentially, criminal or specific offences. I give way.
  Earl Peel: My Lords, I am obliged. Perhaps the Minister could respond to my other question. In view of the fact that those very important items were deleted in another place and are now covered by the catch-all provision in paragraph 1(d) of Schedule 2, I asked the Minister whether it would be possible for them to be mentioned in the code of practice. They are so important that, quite frankly, it would be disingenuous not to draw the general public's attention to them as being an offence under the Bill.
  Lord Whitty: My Lords, I am being careful not to commit myself absolutely to putting anything in the code that will become the responsibility of the Countryside Agency. However, no doubt this is an issue which the agency should address for the sake of clarification—
  Lord Monson: My Lords, is depositing rubbish or leaving litter a criminal offence? I accept that the other subjects referred in Amendment No. 40 are criminal offences, but surely leaving rubbish is not actually criminal?
  Lord Whitty: My Lords, I am sorry to presume to correct the noble Lord, but I believe that litter offences are criminal offences in almost all circumstances.

  1057
  I turn to Amendment No. 37, tabled in the name of the noble Baroness, Lady Hamwee. This amendment would add a restriction of interfering with any written notice or warning without reasonable excuse. We consider that the various activities that this might include are already covered by the restrictions in the sense that debasing or uprooting a sign would clearly be criminal damage in any case. If the sign were vandalised or moved, the criminal damage would be caused. Therefore, it is already covered.
  I am grateful to the noble Lord, Lord Luke, for accepting that our Amendment No. 33 might be slightly superior to his own. However, he does not seem to accept the same in relation to Amendment No. 39. Our amendment is slightly wider in that it relates to tampering with anything. Clearly that would include tampering with any fences, notices or anything that was erected to protect a particular feature that may be dangerous, or which may require information to be conveyed. We therefore think that the question of a mine shaft is covered, as are other features. If we were to specify mine shafts, the effect of the clause might, by omission, imply that those items not mentioned were not covered. We believe that our general clause is better.
  Baroness Hamwee: My Lords, the Minister indicated that our amendment is covered through general provisions. But is there any difference between warnings, fences and barriers? If tampering with a notice is a criminal offence, then surely breaking down a fence is also a criminal offence.
  Lord Whitty: My Lords, there may be a point of logic in that to which I cannot quickly respond. However, if someone climbs over a fence and inadvertently damages it, that may not actually be a criminal offence in itself. We are talking here about deliberate damage to a notice. I believe that that is what lies behind the noble Baroness's amendment. The situation is clearly covered.
  On Question, amendment agreed to.
  10.15 p.m.
  Viscount Bledisloe Viscount Bledisloe moved Amendment No. 32:
  Page 64, line 23, at end insert ("which is at all times on a short lead").
  The noble Viscount said: My Lords, in moving this amendment, I wish to speak also to Amendments Nos. 41 and 43. We now come to the question of dogs. Amendment No. 32 seeks to ensure that if dogs are to be allowed on the land we are discussing they must be on a short lead at all times of the day and throughout the year.
  Amendment No. 41 simply defines a "short lead" as a fixed short lead, not an expandable, "fishing line" lead which allow dogs to range freely. Amendment No. 43 merely deletes certain paragraphs which would become unnecessary if Amendment No. 32 were accepted.
  The Bill already recognises that dogs off leads can cause harm in that it excludes dogs off leads from certain land between March and July. Government Amendment No. 118 recognises that dogs can cause harm to grouse and to lambing. However, the Government do not appear to consider the position of other wildlife, pregnant sheep, sheep which have young lambs or other stock. Dogs off leads have no place in the provisions of the Bill. The Bill allows people to roam across country; it does not allow dogs to roam freely.
  I do not know but I suspect that few serious ramblers want to take dogs with them. Those who want to walk the dog do so on footpaths or in their local areas. Even if some ramblers wished to take their dogs with them, it would be wholly unbalanced to allow dogs to roam loose and to damage the occupier, the land and the fauna and flora on it. If a dog is to be allowed access to the land in question, it must be kept on a lead. The right to roam must not be extended to dogs. Once a dog is off the lead, it may become uncontrollable and may chase animals and scare birds off their nests. That danger appears to be recognised as regards grouse but does not appear to be recognised as regards any other bird. A dog off the lead can cause infinite damage and enormous trouble to an owner. This Bill should not concern itself with dogs off leads. I beg to move.
  Lord Hardy of Wath: My Lords, Amendment No. 45 which stands in my name is concerned with the matter we are discussing. I should be greatly obliged if the noble Lord did not press his amendment for the following reason. However, I shall mention other reasons later.
  We have heard of the dangers and hazards in access areas. Often search parties spend long hours on cold nights looking for missing people. They might not find them without the help of rescue dogs. One cannot keep a rescue dog on the lead if it is to do its job properly. I understand the reservations and the anxieties that the noble Lord has mentioned but I believe that a slightly different approach needs to be adopted.
  Lord Northbourne: My Lords, I make a plea on behalf of all those hill farmers who raise sheep—as I used to do—for whom the issue of dogs is critical. If a dog which has a taste for chasing sheep runs loose off the lead on a moor it will become uncontrollable. At certain times of the year it can cause thousands of pounds worth of damage. The crop for a hill farmer is lambs. If sheep heavy with lamb are chased the farmer will lose perhaps many lambs. A large dog can pull down a ewe. There must be provision in the Bill for dogs to be kept under control if one is to have the support of the hill farming community.
  Baroness Byford: My Lords, I have put my name to the amendment. I agree with the sentiments of the noble Lord, Lord Northbourne. I declare an interest as someone who has always had a dog—some more controllable than others. We have a rescue gun dog; we took her in at the age of three. She is well trained but,

  1059
  given half the chance, her natural instinct is to chase. I strongly support the amendment. I shall not go over the arguments so well expressed by the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Northbourne. I understand the reservations of the noble Lord, Lord Hardy. I believe that this provision is crucial. I hope that the Government will be persuaded by the arguments.
  Earl Peel: My Lords, I, too, support the amendment. I have an identical amendment which is grouped separately, and somewhat cleverly, with government Amendment No. 118 relating to dogs on grouse moors. I have no doubt that that has been done in order to silence me! However, I shall welcome the Minister's amendment with open arms. But that does not detract from the fact that the noble Viscount, Lord Bledisloe, raises an important point. The noble Lord, Lord Northbourne, is right. I suggest that this is probably the most crucial issue.
  The Government have come a long way. We shall discuss Amendment No. 118 which I welcome. But dogs will be a problem on any land. Wildlife, livestock and game birds exist on land other than grouse moors. We cannot ignore those areas. It is obvious that dogs on extended leads will cause more disturbance than those on short leads. There are increasing numbers of those leads—the noble Viscount, Lord Bledisloe, described them as fishing lines—which can extend to 20 or 30 yards. A dog on an extended lead will inevitably be considerably more out of control than a dog on a short lead.
  I draw noble Lords' attention to the independent report produced by Professor Hudson for the Countryside Agency. He concluded that dogs were seven times more likely than humans to create disturbance to wildlife. I suggest that a dog on a long lead, which is to all intents and purposes out of control, comes into that category. I believe that the majority of dog owners would agree the principle that the Bill is about people; it is not about dogs. Any greater degree of freedom accorded to people must come with additional responsibility. Part of that responsibility is keeping dogs under control. Under control inevitably means short leads. I welcome the noble Viscount's amendment.
  Lord Monson: My Lords, I support the amendment and the point raised by the noble Lord, Lord Northbourne. Within the past fortnight I have read in a respected broadsheet newspaper that 24,000 sheep a year are killed by dogs. That seems a staggering figure. However, no one has challenged the report so I can only assume that it is true.
  The Countess of Mar: My Lords, I apologise for intervening in the debate so late. I support the noble Viscount, Lord Bledisloe. Many people will say that their dogs have never chased sheep. We must remember that a dog is a natural enemy to a sheep and a sheep will run when it sees a dog. Similarly, a cow
  1060
  with a calf will run towards a dog when it sees one to attack it. If the dog is under close control, the owner has a chance to do something about it.
  Lord Monro of Langholm: My Lords, having carefully read the report of the Committee debates about dogs, I entirely support the comments of the noble Lord, Lord Northbourne, about hill farming. The Minister seemed to give the impression in Committee that the majority of lambing happened off the hills and in lambing sheds, so the problems would not arise. That is not so. The majority of hill lambs, such as black faced lambs and Cheviots, are lambed on the hill. If there are dogs on the hill at the time, the risks are increased substantially.
  The Government should consider the issue carefully. The noble Viscount, Lord Bledisloe, put the matter very well. This is not a Bill to allow dogs to roam where they like; it is designed to deal with people. They have to accept that their dogs must be under control. That is not universally accepted.
  I occasionally go to the United States. In Maryland, dogs can never be taken for a walk without a short lead, even in urban areas. The police enforce that law rigorously. It is not unusual to insist on dogs being under control. We have an opportunity to do something really helpful to hill farmers, who are going through a dreadful period at the moment.
  Baroness Gibson of Market Rasen: My Lords, I may be a lone voice in the Chamber this evening, but I do not support Amendment No. 43. When we debated the issue at Second Reading, I said that, as someone who was born and brought up in the countryside and had lived most of my life there, I believed that dogs should be firmly restricted in the countryside. I was pleased when I saw the Bill. There had been a wide debate before it was published and a lot of views had been put forward about when dogs should be on leads. I felt that the Minister had walked the tightrope of those views well and the Bill was a good compromise.
  I do not want the restrictions on dogs to be removed. I am pleased that the protection for sitting birds on all access land has been extended until the end of July. I had supported that previously. I am pleased that measures have been adopted to regulate dogs in the vicinity of livestock. That is also sensible. Under Chapter II, local restrictions can be made to suit any area. That is important, because the countryside differs from area to area. Your Lordships have given graphic descriptions of many different areas.
  I make a plea for retaining the restrictions on dogs in the schedule, because local restrictions can be made under Chapter II. For example, in hill farming areas local authorities can introduce restrictions to suit local conditions.
  Lord Mancroft: My Lords, I support the amendment. Like my noble friend Lord Peel, I think that dogs are probably the most important issue in the Bill. Like most of those who have spoken, I am a dog owner and a dog lover. I would take my dog anywhere if I could, but it is vital to keep them away from

  1061
  ground-nesting birds, other wildlife and sheep, cattle and horses. Wild ponies breed on Exmoor and Dartmoor, which are access areas. The last thing that they need is dogs near to them.
  Short leads are vital. We keep talking about dogs being out of control. As has already been said, it does not matter so much what the dog is doing; the important fact is the dog's presence. If a dog is 10 yards off a track going past a nest because it is on a long lead, the effect is the same as if it were off the lead and running wild. It will push the hen off the nest. It is absolutely essential that dogs are on short leads. A dog on a long lead has the same effect as one off the lead. Therefore, I strongly support the amendment.
  10.30 p.m.
  Baroness Miller of Chilthorne Domer: My Lords, for the reasons stated by other noble Lords, we on these Benches certainly support the concept of defining a lead as being of fixed length. We believe that the suggested restrictions in relation to dogs are a positive move forward in setting out what is expected of dog owners.
  However, perhaps of all the issues that require the most thought from the Government in respect of persistent offenders, the one relating to dogs is the most difficult. Dog owners frequently walk the same route, and those who offend by frequently letting their dogs off the lead when they should not do so are likely to continue to follow that pattern. As a dog owner, I know how much fun a dog has when it is off the lead. Certainly, the temptation is to allow it to be off the lead more than it should be.
  I shall be interested to hear the Minister's reply to Amendment No. 42. I have some reservations about being more restrictive in relation to dogs than we need to be. There is no doubt that some people much enjoy walking with their dogs, but the interests of livestock must certainly be at the forefront of our considerations when we discuss these amendments. I believe that we are three-quarters of the way there in terms of restrictions on dogs, but there is still a little way to go.
  The Earl of Caithness: My Lords, I had hoped that the noble Baroness would be a little more forthcoming. As usual, she is sitting on the fence. She is saying that a restriction in terms of a fixed length for leads is required, but she refuses to tell the House what length of lead she believes dogs should be on.
  Baroness Miller of Chilthorne Domer: My Lords, I am sorry. Perhaps I should have expanded on the matter, but I was trying to save the time of the House. The noble Earl may remember that in Committee I tabled an amendment which specified two metres in length.
  The Earl of Caithness: My Lords, I simply wondered whether the noble Baroness had had further thoughts and had changed her mind. I am surprised that she did
  1062
  not say that at the time. What she has just said rather supports Amendment No. 46 in the name of my noble friend Lord Peel, which we shall come to shortly.
  I thoroughly support what the noble Viscount, Lord Bledisloe, said. At Second Reading I mentioned an incident that I witnessed in Richmond Park in which a dog chased deer. Such incidents will be far worse on the open hill.
  Lord Whitty: My Lords, although the noble Earl, Lord Peel, suggests that we cleverly group these amendments, the amendments are not the Government's choice. In my view, we have probably grouped the amendments quite illogically in that there are seven groups on dogs. Perhaps it would have been useful to discuss the various options together. In order to avoid future repetition, I believe that it may be sensible if I set out the Government's case.
  First, I accept the point made by the noble Viscount, Lord Bledisloe, that this Bill concerns the rights of people rather than those of dogs. I might have been rather more convinced of the case for restricting dogs had the same arguments not come from noble Lords who have spent most of the evening arguing for greater restrictions on people in terms of access to the countryside. Nevertheless, I recognise that significant anxiety exists in relation to dogs in the countryside. Therefore, I believe that it is sensible to address these issues.
  However, I believe that dog owners have rights, too. Dog owners are also people and many of them in the countryside wish to use access land, particularly that situated close to villages, in order to exercise their dogs. Therefore, a degree of balance is required in the approach to dogs as it is in the approach to other matters.
  The Government have considered carefully all the points made at earlier stages. The totality of our position, as largely outlined by my noble friend Lady Gibson of Market Rasen, is that we have provided a fairly comprehensive restriction in relation to the management of dogs in the countryside.
  First, we said that dogs must be kept on lead on all access land for four months of the year, from 1st March to 31st July. We said that they must always be on lead at all times in the vicinity of livestock on any access land. We have given the landowner powers to exclude dogs from fields or areas in which lambing is taking place and to exclude dogs from moors which are managed for grouse shooting, as the noble Earl, Lord Peel, said. That includes vast tracts of the countryside available for access. We have made provision for stronger local restrictions on dogs including complete bans on dogs where that is necessary for specific local reasons. Those bans could be reinforced by by-laws.
  We consider that that package of measures and restrictions on dogs meets explicitly most of the specific objections made in this argument.

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  I am prepared to consider one further change relating to the question of short leads. I am not prepared to accept the noble Viscount's amendment which requires short leads at all times in all places on all access land. That is, to put it at its mildest, excessive. Where we define requirements for dogs to be on lead, then the requirement that they be on short leads should apply and the two metres referred to in the recent exchange between the noble Earl and the noble Baroness, Lady Miller, would be appropriate. There are some difficulties here in that an extendable lead can be used as a short lead, but that can probably be addressed.
  Therefore, I would be prepared to accept something along the lines of Amendments Nos. 46 or 49, or both, or some combination thereof.
  Beyond that, I do not believe that we should move further in restricting dogs in access land. Are we saying that in all these acres about to be opened to access there should be no place—a bit of commonland close to the village, a bit of downland where historically people have tried to exercise dogs and have been legally forbidden to do so—where we can allow a dog to run free? That would send a very odd message to millions of dog owners, particularly those who live in the countryside.
  The reality of the matter is that there are more dog owners than ramblers and landowners. Therefore, their interests do have to be reflected, at least partially, within this Bill.
  The package of amendments that the Government is putting forward in the Bill and in Amendment No. 118 meet most of the specific objections to dogs or dogs running loose. The amendment of the noble Viscount goes too far. I hope he will not press it.
  I shall not repeat this on subsequent amendments, but apart from Amendments Nos. 46 and 49 I will not favour the subsequent amendments either.
  Viscount Bledisloe: My Lords, I readily confess to the noble Lord, Lord Hardy, that I had not considered his point about rescue dogs and it merits further thought. My initial reaction is that it would not be inhibited by this amendment. I do not believe a rescue dog comes on to land by using the right to roam given by this Bill. It comes on either by the tacit consent of the owner or in an emergency. The point needs further consideration. I accept fully that a rescue dog on a lead is probably a contradiction in terms. I shall certainly take that point on board.
  There is no intention on my part to press Amendment No. 43. It would be inconsequential if the earlier amendment had been passed.
  The noble Baroness, Lady Miller, said that her dog has fun off the lead. But the dog has fun because it is doing the things that are so harmful to the landowner—chasing animals, pursuing smells and disappearing down rabbit holes. It is those activities that are going to harm the wildlife and livestock.
  1064
  I fully accept that by keeping the dog on the lead, I am inhibiting the fun of the dog but that is because the purpose of the Bill is to balance the right of a person to roam against the legitimate needs of the landowner and conservation and so on. I accept that if an amendment on these lines were passed, some dogs would have a less jolly time. But they are having a jolly time at the expense of the things that we need to protect.
  I must confess that I thought the point made by the noble Lord, Lord Whitty, about the source of the amendment was cheap and unworthy of the way in which he has otherwise conducted himself. Those who are putting forward amendments are seeking to allay the very legitimate fears of those in the countryside. Some amendments concern what people do; others concern what dogs do.
  Finally, the noble Lord, Lord Whitty, asked whether it is really being said that there is no place on any kind of access land on which dogs can be allowed to run free. I accept that there may be some relatively rare pieces of access land on which dogs could be allowed to run free. I am ready to consider something on the lines of what I put forward in relation to night access; that is, that normally dogs should be kept on leads but the Countryside Agency can, in certain circumstances, certify such land as fit for dogs off leads.
  Earl Peel: My Lords, it may be helpful for him to know that paragraph 6 of Schedule 2 provides such a derogation power.
  Viscount Bledisloe: My Lords, again, I shall have to consider that. But the essence of the matter is that the majority of access land will be unsuitable for dogs off leads. The noble Lord, Lord Whitty, almost admitted that when he said there will be occasional pieces of land—commons and so on—where dogs could be allowed off leads. I hope that perhaps he and I could meet to try to devise something which recognises that fact.
  In the light of the need to deal with that and the point made by the noble Lord, Lord Hardy, about rescue dogs, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Whitty Lord Whitty moved Amendment No. 33:
  Page 64, line 28, at end insert—
  ("(ga) feeds any livestock,").
  On Question, amendment agreed to.
  [Amendments Nos. 34 and 35 not moved.]
  Lord Whitty Lord Whitty moved Amendment No. 36:
  Page 64, line 38, at end insert—
  ("(la) without reasonable excuse, interferes with any fence, barrier or other device designed to prevent accidents to people or to enclose livestock,").
  On Question, amendment agreed to.
  [Amendments Nos. 37 to 41 not moved.]
  Viscount Bledisloe Viscount Bledisloe moved Amendment No. 42:
  Page 65, line 13, at end insert—
  (" .—( ) Where a person persistently fails to comply with any restriction in this Schedule relating to dogs on any access land, the access authority or any person interested in that land may seek an exclusion order in respect of that person under section 43 of the Criminal Justice and Court Services Act 2000.
  ( ) Without prejudice to the generality, a person shall be deemed to have persistently failed to comply with a restriction if—

  (i) having had his attention drawn to a failure by him to comply with a restriction, he fails again to comply with that restriction during the next 24 hours; or

  (ii) he fails to comply with a restriction on three occasions in any period of twenty-eight days.").

  The noble Viscount said: My Lords, we now return to the vexed question of what one does with people who persistently offend. Here we are dealing with people who persistently offend, particularly in relation to dogs. It may well be asked—and I anticipate that the Government will ask—why dogs should be in any different position in relation to this matter generally. The answer is that offences with dogs will be the most frequent and difficult to control. People will let dogs off their leads and, when they are rebuked, they will put their dogs back on them. No sooner are they over the brow of the hill than they will let their dogs off their leads again. That is exactly the experience of the noble Lord, Lord McIntosh, on Hampstead Heath when he tries to rebuke people for not keeping their dogs on a lead. If people lapse on Hampstead Heath, where a lot of people are looking, how much more will they lapse on open moorland? I fail to see how any landowner will cope with people who disregard the rules without some protection.
  The noble Lord, Lord McIntosh, said that such a provision seeks to make walkers into criminals but that is not so. We are seeking to take sanctions not against walkers but people who disregard the rules. It is just as illogical to say that one is seeking to make drivers into criminals with laws against speeding or illegal parking. A person is entitled to drive but there are restrictions on what he is allowed to do. If he does not obey them, he becomes liable to criminal sanctions. A person is entitled to a right of access but if he persistently flouts the rules, that is not turning walkers into criminals but turning rule breakers into criminals.
  The noble Lord's other argument was that such a provision will make trespass an offence, which it has never been—so that is a change in the law. That is a wholly illogical statement that arises only because the Government have chosen to say that the only sanction of consequence against breaking the rules is to make
  1066
  the individual a trespasser. The noble Lord shakes his head but that is so. The Government are giving a right and saying, "If you break the rules, you will become a trespasser". They could just as easily have said, "If you break the rules regularly, you will become subject to the criminal law". The way that the Government have chosen to phrase the Bill allows the noble Lord to invoke the argument that we are trying to change the law of trespass. In fact, the amendment would change the way in which the Bill is to be regulated. I beg to move.
  10.45 p.m.
  Baroness Byford: My Lords, I take the opportunity to thank the Government for agreeing to review the matter of short fixed leads because that will help. While the Minister has given way on grouse and the protection of game, the whole issue of wildlife is not included. That may be an oversight.
  Many people who live and work in the countryside are concerned about dogs. If there is nothing to stop some dog owners ignoring the rules, they will persist. Wardens in some parks know that dogs are kept on leads until they are out of sight, then released.
  The rules in the Bill are few and simple. Anyone visiting the countryside caught breaking the rules would be required to leave the land for 72 hours—although that will not stop some people. The same should apply in relation to dogs. Many organisations have expressed concern about the effects of dogs on the countryside. They include the Royal Institution of Chartered Surveyors, which represents a large number of qualified professionals—many of whom are experienced in matters affecting the rural environment. We have received submissions also from the Country Landowners' Association, Countryside Alliance and National Farmers Union.
  I hope that the Minister will not dismiss the amendment, thinking that there is no need for it. I assure him that there is a need for some sanctions in the countryside.
  Earl Peel: My Lords, I support my noble friend and the noble Viscount, Lord Bledisloe. In principle this is the same argument as we debated on Amendment No. 24. Like the noble Viscount, I do not want to be accused of assuming that the two arguments are the same. I do not wish to rehearse the arguments.
  However, there is the point that I sprung on the noble Viscount. In Schedule 2 there is an important provision which gives the local authority, by direction, powers to derogate and, therefore, to amend parts of Schedule 2 that refer specifically to dogs. It would not be difficult to work on the principle that there would be a blanket restriction on dogs and derogated powers invoked in local areas by local authorities if there was a tradition in that part of the access area for dogs to exercise the right to roam, or however one describes it. It can be done.

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  The central point of the argument, as has been made so many times, is that this is such a key issue in the countryside that I hope that the Government take seriously the points that have been made.
  Baroness Hamwee: My Lords, we are not able to support this amendment. We have commented before on the creation of new offences and this is a similar situation. We believe that three strikes and you and your dog are out would be too draconian. The analogy has been made with driving offences, but I do not believe that there is a possibility of dogs having points on their licences which may lead to disqualification.
  The problem is not of a dog entering land, but dogs attacking sheep. I hope that we shall hear from the Minister that there are sanctions on that type of event. We feel that this amendment proposes more than is required to deal with such situations as have been put before your Lordships.
  Lord Whitty: Amendment No. 42 deals with sanctions rather than scope, which I did not tackle fully previously. As the noble Baroness has said, it creates a new offence and it creates an offence in an area where there is no appropriate parallel sanction. We have heard this argument in relation to breaches of other restrictions and I shall not repeat the arguments expressed by my noble friend Lord McIntosh.
  In this context, exclusion orders are not an appropriate mechanism for dealing with civil matters, such as breaches of restrictions. They are meant to deal with serious criminal offences which may attract custodial sentences. Failure to keep a dog on a lead is not an appropriate situation for an exclusion order. Of course, where there is a persistent problem, a landlord has the option—rather than going through the potentially lengthy procedure of obtaining an exclusion order—of applying for an injunction.
  Of course, the more important issue, as mentioned by the noble Baroness, Lady Hamwee, is that if a dog does actual harm it is possible to claim damages and to impose greater restrictions, or it is possible to ban them completely. The access authority as the noble Earl, Lord Peel, has pointed out, can impose tighter restrictions. I would prefer things to be allowed if they are not restricted, whereas he tends to adopt the view that things are restricted unless they are allowed. Therefore, it is better to give local access authorities the ability to pass by-laws. If such by-laws are made, a breach of those restrictions could become a criminal offence. Therefore, this issue can be dealt with in that way. Using exclusion orders in this context simply for breach of the dog restrictions, as distinct from causing criminal damage, seems an inappropriate use of the Bill's provisions. I hope therefore that the noble Viscount will not pursue the amendment.
  The Countess of Mar: My Lords, before the noble Lord sits down, will he say whether other legislation enables a landowner who finds a dog worrying his sheep to deal with the matter, first, by warning the owner and eventually by being able to shoot it if it is caught worrying the sheep?
  Lord Whitty: My Lords, a dog worrying sheep is covered by earlier provisions and they include the ability to shoot the dog. I am not suggesting that that should be used in all instances as regards this matter but where damage is caused—for instance, worrying sheep—a criminal offence already exists.
  Lord Glentoran: My Lords, I have a question which could become important. If a dog while running on access land eats poison, where does the landowner or the dog owner stand?
  Lord Whitty: My Lords, that is an interesting question. I suspect that no liability arises from the rights of access because those rights are for people and not for dogs. Therefore, there will be no liability on the landowner. I am pretty confident with that answer but should my lawyers tell me otherwise I shall inform the noble Lord.
  Viscount Bledisloe: My Lords, the Minister says that when the dog has worried the sheep, killed many of them and many lambs have been lost something can be done about it. It is not much consolation to a farmer to know that a man can be prosecuted after his dog has caused such damage, nor is it a great consolation to the sheep which probably would rather not have been killed or been caused to abort.
  The point is that the farmer who sees dogs off the lead will have to chase after the man and tell him to return it to the lead. That is a bore. If the man disappears over the hill and lets the dog off again the farmer will have to go through the same process. That is much more than a bore; it is an infuriating irritation and a total waste of his time and effort. The person who makes it plain that he will not obey the rules is the problem.
  None the less, I fully accept that it would be wrong to press this topic on its own when the whole question of what is to be done with the offenders remains outstanding, Therefore, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 43 not moved.]
  Lord Whitty Lord Whitty moved Amendment No. 44:
  Page 65, line 17, leave out ("apply to a person who") and insert ("entitle a person to be on any land if he").
  On Question, amendment agreed to.
  Lord Hardy of Wath Lord Hardy of Wath moved Amendment No. 45:
  Page 65, line 18, at end insert ("unless it is with the permission of the owner or occupier of the land").
  The noble Lord said: My Lords, I do not want to take too long, but this is a serious matter. I fully recognise that dogs, especially those owned by irresponsible people, cause enormous havoc in the countryside. I hope that my remarks will not be seen as defending them.
  I should first declare an interest: I am an honorary member of the Kennel Club, but what I intend to say tonight are my comments and not the club's. I interrupted the noble Viscount, Lord Bledisloe, to point out that his amendment would have prevented the use of the rescue dog, which inherently must be off the lead. But the Bill as it stands would also prevent many other dogs being off the lead.
  I remember living for a short time on a sheep farm in Scotland where I learnt a great deal about collies. My friend had one collie which he could tell to move ewes from one field to another without him having to leave the kitchen. Dogs are invaluable to shepherds but I wonder how they will manage if their collies have to be on leads, as proposed in the Bill.
  11 p.m.
  Viscount Bledisloe: My Lords, perhaps the noble Lord will reciprocate by giving way. This regulation applies only to those who exercise the right of access under the Bill. A shepherd who looks after his sheep does not come onto the land pursuant to the Bill but as of right as owner or occupier of the land. Nothing in this Bill affects anything that can be done at the moment; it relates only to those who exercise their right under the legislation.
  Lord Hardy of Wath: My Lords, if the noble Viscount is correct I am greatly relieved. Looking at the text of the Bill, I believe that there is doubt about it, although I am not a lawyer. I hate to think that a shepherd must manage without a collie. That is not the only problem which will arise. If people want to exercise their right of access and prepare for shooting grouse on 12th August they will have only 11 days during which their dogs can be free. If they are the owners of the land and the noble Viscount is correct, there is no problem. However, if visitors exercise their right of access it may be that, when we come to the election campaign, the Government will be accused of attacking shooting by the back door.
  Another activity which would be threatened is hound trailing. My noble friend Lord Bragg knows a great deal about it and may wish to assist the House with the benefit of his considerable experience in that field. It is reasonable to require that dogs are properly controlled, but I hate to think that in all the criticism about dogs there is inadequate awareness of what happens in areas under the aegis of the Kennel Club. I note that my noble friend Lord Hoyle has entered the House; I did not invite him to do so. I suddenly realised that his two dogs had received the Kennel Club's Good Citizen Award because of the splendid control and training which he devoted to them.
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  At Cruft's, which is still the top dog show in the world, one sees the most astonishing achievements in the field of training, obedience and work. That activity is developing very rapidly. My noble friend Lord Whitty referred to the large number of dog owners. Increasing numbers are being drawn into the network of training, working trials and all the rest of it. It is a much larger activity than it was, say, five or six years ago; and certainly it has been the subject of tremendous development over the past 20 years. The large number of people involved in Kennel Club activities throughout the country need encouragement and commendation so that there are far fewer irresponsible dog owners and badly behaved dogs.
  Those who live in access areas are placed in particular difficulty. For example, tonight we have agreed that there should be a 20-metre protected area around each dwelling in access land in order that people can be exempt from the obligations of the Bill. That is not a long distance for the purposes of training dogs. When one trains dogs sometimes they must be let off the lead. If a dog is to learn to come to its owner or to stay it must be allowed off the lead for that purpose. It is essential that those who live on access land, or areas adjoining it, are not placed in a position where for a very large part of the year they are unable to take their dogs off the lead. That will not help the dog's conduct or training.
  In order to present the country with a balanced and sensible measure I commend this amendment to the House. It enables a farmer or landowner to give permission to his neighbours to exercise and train their dogs on his land. He knows whether they are capable of handling the dogs properly. That will not interfere with proper recreation, whether it be hound trailing, sheep dog trials, hound shows, village exemption dog shows and all the rest of it. Those activities can continue without much harm and provide reassurance and encouragement for those who wish their dogs to behave properly. I beg to move.
  Lord Whitty: My Lords, on this rare occasion perhaps I may agree with the noble Viscount, Lord Bledisloe; I do not think the amendment is necessary. The restrictions relate to people exercising the right of access. They do not apply to the owner using dogs on his own land or the owner who gives permission to others to use dogs for whatever purpose on his land. Therefore, both the original situation which my noble friend described, and the training of hounds with the permission of the owner will not be affected by the restriction.
  Lord Hardy of Wath: My Lords, I am grateful to my noble friend. Perhaps he will consider this point. I go with my dogs to my friend's farm. I want my dogs to go for a walk with me. I know that they will not chase sheep. I know the way to stop dogs from chasing sheep. One puts them in a pen with a ram and they will never chase sheep again. Will my noble friend accept that I would need my friend's

  1071
  permission for my dogs to go off the lead? He should have the right to give such permission. That is all I ask for in the amendment. If my noble friend thinks it is unnecessary I have very real doubts as to whether that advice is accurate.
  Lord Whitty: My Lords, it is accurate. The owner can give permission both directly and tacitly, because if he does not object to you then no consequences arise. You are covered in the situation where you have not formally sought prior permission. If he does not object then no other sanction applies. Therefore, either way, you are allowed to exercise your dogs with the connivance or permission of the owner.
  Lord Bragg: My Lords, I thank my noble friend Lord Hardy for raising what could be a regional problem.
  Baroness Farrington of Ribbleton: My Lords, I am sorry to have to tell my noble friend that once the Minister has replied no one else may speak, other than the mover of the amendment who indicates whether or not he wishes to withdraw it.
  The Earl of Caithness: My Lords, I thought that with Amendment No. 45 were grouped other amendments, including the Minister's Amendment No. 118 and my Amendments Nos. 119 and 210. I should like clarification from the noble Baroness as to whether they are to be spoken to at the same time.
  Baroness Farrington of Ribbleton: My Lords, strictly speaking, noble Lords who wish to speak to other amendments should do so before the Minister replies.
  The Earl of Caithness: My Lords, how can I speak to the Minister's amendment if he has not spoken to it himself?
  Lord Whitty: My Lords, we have a slightly confused position here. I thought I allowed time for noble Lords to speak and therefore my noble friend Lord Hardy followed me. If we are discussing all amendments in the group then I shall formally move Amendment No. 118 and allow the noble Earl to make his points and open the debate to others.
  Lord Bragg: My Lords, I thank my noble friend Lord Hardy, my noble friend the Minister and the House for allowing me to discuss very briefly what might be a regional difficulty. I refer to trail hounds. They are bred for great speed in Cumbria from foxhounds. They race freely across open countryside or fell land for varying distances, but always several miles. Their pursuit is motivated by nothing more inflammatory than a trail of aniseed laid down
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  immediately before the race. The many supporters of trail hounds find it financially possible to own and train one or two of these amiable dogs. They derive enormous satisfaction from that.
  Viscount Bledisloe: My Lords, the noble Baroness, Lady Farrington, indicated that no other noble Lord could speak on this amendment. I do not quite understand why indulgence is given to those behind her that is not given to noble Lords in other parts of the House. There are other amendments which can be spoken to when they are called.
  Lord McIntosh of Haringey: My Lords, all the amendments in the group can be spoken to. The Minister was replying to Amendment No. 45 but I take it that, tacitly, he was, with the leave of the House, dealing with an immediate issue that arose. The whole of the group is now open for debate and all noble Lords who have amendments in this group and indeed other noble Lords are at liberty to speak.
  Lord Marlesford: My Lords, does that, include the amendment of the noble Lord, Lord Hardy, as I wanted to say something about it, or is that now ultra vires?
  Lord McIntosh of Haringey: My Lords, it includes the amendment of my noble friend Lord Hardy.
  Lord Bragg: My Lords, life is a struggle!
  The hound trails often bring life to remote villages in Cumbria which hold the meetings. They are a rich part of local life. The meetings are generally held in the evening.
  It is vital that it should be made absolutely clear that hound trailing is not subject to restrictions regarding the use of a lead. That would destroy a sport which plays such a unique role in Cumbria where, as elsewhere, country life and country living, especially in the hill farm areas, are now under great strain. I thank your Lordships for your indulgence.
  The Earl of Caithness: My Lords, the Minister has now spoken to Amendment No. 118. I have tabled Amendments Nos. 119 and 120 as amendments to Amendment No. 118. As they are all grouped, perhaps it would be for the convenience of the House if I spoke to them now.
  There are a number of points arising from Amendment No. 118 on which I seek clarification. The amendment includes the words,
  "by taking such steps as may be prescribed".
  Who will prescribe those steps? Will it be open to the landowner to challenge the prescription? How will that work? Will the landowner require permission from the access authority in order to make this enactment? Will he have to consult the local access forum? None of that is clear in the amendment. I am concerned about the implications of the Bill.

  1073
  Another word in the amendment worries me. The final line of subsection (1) of Amendment No. 118 refers to persons who do not take "dogs" on the land. Does "dogs" include "a dog"? Does the plural include the singular? That is an important point for us to get straight. Those are the four points on Amendment No. 118 on which I seek clarification.
  When speaking to Amendment No. 32, the noble Lord, Lord Whitty, said that dog owners have rights. That statement cannot be let go without some challenge. I do not think that that is a correct statement. Dog owners have responsibilities but they do not have rights. It is one's personal choice to have a dog. Having made that personal choice, one then has responsibilities. One should not have rights. It is with regard to the exercise of those responsibilities that we are seeking clarification.
  I turn now to Amendments Nos. 119 and 120. While I welcome in principle Amendment No. 118, I cannot understand why it is restricted to moor,
  "managed for the breeding and shooting of grouse".
  My mind immediately went to the heathland of Norfolk, which I used to know quite well, where there used to be, and still are, a large number of wild English partridges. The land was managed for the benefit and preservation of the wild English partridge. At the same time, the land was managed for farming. That is no different from a grouse moor. I cannot understand why the Government have decided on a separate category of owner. If an owner is preserving and enhancing wildlife—on the one hand, grouse, of which I thoroughly approve—why should not the same benefits be given to an owner on the Norfolk heathland, which is likely to be scheduled under the Bill, to prevent dogs from going onto that land?
  The grey partridge is declining in numbers and needs to be encouraged. It has now been recognised throughout the House that a dog can cause considerable damage at nesting time. I am considering also the position of wildfowl and the wader species. As I pointed out in Committee, the Oxford English Dictionary defines a "heath" as marsh. If an owner manages a marsh for the benefit of wader species, then why should not that owner be given the same benefit as the owner of a moor? That explains the reasoning behind Amendments Nos. 119 and 120.
  I should have mentioned this earlier in my contribution, but I shall return to it now. Subsection (3) of the new clause in Amendment No. 118 limits the amount of land to,
  "a field or enclosure of not more than 15 hectares".
  That troubles me because a great deal of lambing still takes place on the open hill. From what was said
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  earlier, it appears that it will be quite possible that a field or enclosure of 15 hectares might well be excluded as excepted land because it may be cultivated or more intensively farmed; namely, it is likely to be in-bye land. However, the owner of land just beyond that will not be protected in any way. Again, we shall see a division between owners. One owner with fields of 14.5 hectares will be able to prevent dogs from going on to his land. But the farmer up the road who undertakes his lambing on the open hill will receive no protection, even though those sheep on the open hill will probably be more scared by dogs. They will be more likely to panic than ewes lambing in a field.
  I once had the enjoyment and difficulty of working as a shepherd on the hill in Scotland. I have seen the consequences of stray dogs disturbing blackface sheep. Once those sheep begin to run—with no boundaries within a 15-hectare area—they simply run and run. At lambing time that can be very detrimental. The noble Lord, Lord Northbourne, made exactly the same point.
  I hope that the Minister will explain further the intentions behind Amendment No. 118. I hope, too, that he will look sympathetically on Amendments Nos. 119 and 120.
  11.15 p.m.
  Lord Jopling: My Lords, I was somewhat staggered to hear a treatise from the noble Lord opposite about hound trailing. I thought that I recognised in his contribution almost precisely some of the remarks I made at col. 1400 on 3rd October. I shall read out only one section:
  "For those of your Lordships who may not be familiar with hound trailing, a paraffin and aniseed drag is laid over a course of about 12 miles around the mountain tops".—[Official Report, 3/10/00; col. 1400.].
  If ever a case could be made for plagiarism, this is it. For a moment, I thought that the noble Lord was reading out my speech from another occasion. Having listened to the remarks that have been made as regards repeating what was said in Committee, I thought that it was all a bit hot.
  However, who am I to complain when someone on the opposite Bench takes exactly the view that I took in Committee about the need to ensure that no measures are taken in the Bill to interrupt the historic sport of hound trailing in the Lake District? I declared my own interest in Committee as the part owner of two trail hounds and also my membership of the Trail Hound Association, so I shall not declare those interests again.
  I am delighted to have an ally here, but I had expected, during the contribution made by the noble Lord, to have received some recognition of the author of his remarks.
  Lord Bragg: My Lords, I am very disappointed to have to say to the noble Lord that the remarks I made were my own.
  Baroness Young of Old Scone: My Lords, now that we have open season on this group of amendments, perhaps I may comment on a number of them.
  I support Amendments No. 46 and 49, which have been brought forward by the noble Earl, Lord Peel. If leads are required, they should be defined as short leads. I am grateful that the Minister is prepared to accept such a provision.
  As to Amendment No. 47, I wonder if I detect a smidgen of inconsistency on the part of the Minister. The amendment seeks to remove the ability to change by regulation the period during which dogs must be on leads. That is at the behest of recommendation 18 of the 24th report of the Select Committee on Delegated Powers and Deregulation. I question whether the ability to change the dates by regulation should be quite so obediently given up.
  March until July is the period defined in the Bill, but that is only a best estimate of when it is most important for dogs to be on leads. It will be tested by experience. The ability to make changes in the future is quite important. Perhaps I may give an example. The dogs on leads issue concerns mainly ground-nesting birds. Climate change could quite quickly—we have seen signs of it already—alter the nesting and brooding dates of ground-nesting birds considerably. Therefore there might be a need to change the dates.
  If I understand the Select Committee process properly, an alternative is permitted under recommendation 19 which allows that, if the House should disagree with the recommendation that this provision be dropped from the Bill and considers that the powers should stay in the Bill, then they should be made subject to the affirmative procedure. The Minister agreed to the affirmative procedure under Amendments Nos. 148 and 149 for the whole of Schedule 2. It would be inconsistent if he did not retain flexibility for the future by agreeing to the affirmative procedure in respect of the ability to change the period during which dogs must be on leads.
  As to Amendment No. 118, I was slightly bemused by the noble Earl, Lord Caithness, and his partridges on heathland in East Anglia. Perhaps that is one of the reasons for the decline in partridge numbers. Trying to increase the numbers of partridges on heathland is probably one of life's more thankless tasks as it is a very inadequate and unsuitable habitat for partridges.
  However, I welcome Amendment No. 118, which goes further than previously towards addressing the
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  concerns about the disturbance which dogs can cause to birds on moorlands. I do not think that, in isolation, the amendment addresses some of the continuing anxieties about the impact that dogs have on birds on other categories of access land. But there are a number of other provisions in the Bill, including the requirement to keep dogs on leads from 1st March to 31st July and the ability to restrict or exclude access for nature conservation purposes. Glued together, those are just about enough measures to reassure me.
  It is worth noting that that will mean that the nature conservation bodies will probably have to seek to close certain areas of access land at specific times of the year in order to safeguard wildlife which is particularly vulnerable to disturbance.
  Lord Marlesford: My Lords, I should like to return to the amendment of the noble Lord, Lord Hardy. I wonder if the Minister was right to dismiss the noble Lord's amendment on the grounds on which he appeared to dismiss it. This legislation will almost inevitably result in much litigation. In so far as Parliament can pre-empt the need for that litigation, it should do so.
  I understood the noble Lord, Lord Hardy, to say—I may have got it wrong—that where a person is using the normal right of access on the new land, and where the landowner or occupier chooses to allow that person to let his dog off the lead during a period when it otherwise would not be allowed off the lead, that is something which the owner or occupier should be empowered to do.
  The point that I believe the Minister was making was that the dog would be on the land for a different purpose from that provided for under the Bill. I do not think that that is the case. I believe that what the noble Lord, Lord Hardy, has in mind is that there are certain people who, when exercising their right of access, may, as an additional concession, be given by the owner or occupier the right to have their dogs off the lead. So they would not be on the land by virtue of some special provision; they would be on the land by virtue of this legislation and they would be given an additional privilege which the noble Lord, Lord Hardy, is seeking to write in to the Bill. That strikes me as extremely sensible.
  Otherwise, one person will allow his dog off the lead—which the Bill would not normally allow because he has been told by the owner that he can, and another person not so allowed will complain. It is a perfectly reasonable distinction for an owner to make, but the second person will ask: "Why are you allowed to have your dog off the lead?". The first will say: "Because the owner has told me that I can". The first will say, "But that has nothing to do with it. The Act says that you cannot have your dog off the lead; and if you can, I can". We want to avoid that kind of dispute and possible litigation. I wonder whether

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  the Minister was being a little too facile in his dismissal of the noble Lord's amendment.
  The Duke of Montrose: My Lords, I should like to thank the Minister for some of the content of Amendment No. 118. He keeps telling us how he believes in balance, and that balance certainly comes through in the amendments, which makes it difficult to show unqualified gratitude for some of them. One in point is that relating to the introduction of disease. I thanked the Minister for what he had given on that occasion.
  I am merely looking at what has been allowed on controls on dogs around lambing fields. I thought that we had been given a marvellous new allowance—and then I came across the reference to 15 hectares. Like my noble friend Lord Caithness, I have the voices of my friends and neighbours ringing in my ears. They tell me about the problems that they have on wet days when a ewe is disturbed and jumps over a burn, and the lamb falls in and is found drowned down-river; or if she has twins and goes off and leaves one of them. Those are the problems of lambing on the open hillside. There is still a gap in the provision that we do not seem able to deal with.
  Lord Mancroft: My Lords, I should like to record my gratitude to the Government and the Minister for Amendment No. 118. The issue of ground nesting birds in general, and grouse in particular, is important. I am grateful to the noble Lord for considering it so carefully and for bringing forward this amendment.
  The amendment is important for another reason, beyond what it does. It is a recognition of the important economic contribution that grouse shooting now makes. My noble friend the Duke of Montrose spoke about the problems of dogs in relation to lambing on the hillside. Amendment No. 118 will be important for those areas. I suspect that grouse are of more economic value to that part of the country than are the sheep. Grouse have always been important. It is a sad indictment of the state of farming as we enter the new millennium that shooting rights are now of much greater value than farming rights, but that is the way the world is. I am immensely grateful to the Government for recognising that and bringing forward the amendment—even if I, too, am slightly concerned as to whether the plural, "dogs", in the last line of paragraph 3 also means "dog" in the singular. I have no doubt that the Minister will assure us on the matter.
  Lord Dubs: My Lords, perhaps I may ask a question about an amendment that is in this group but has not been spoken to; namely, Amendment No. 151.
  Earl Peel: My Lords, perhaps I may speak first to Amendments Nos. 46 and 49. I thank the Minister for accepting them in principle. He already knows how pleased I am about his introduction of Amendment No. 118. I echo the remarks just made by my noble friend Lord Mancroft.
  However, there is one further technical point as regards Amendment No. 118 that I should like to raise. I should be happier if the Minister would consider substituting for the word "owner" in the amendment the term "entitled person", which reflects Clause 21(3). The reason for that request is technical. I am told, although I was not aware of it, that approximately one-third of commons on which shooting rights exist are owned by public trustees. That being the case, substituting the word "owner" with the phrase "entitled person" would overcome the problem. I am extremely grateful to the noble Lord for introducing this amendment. I believe that it will do much to help overcome many of the problems that we have discussed.
  11.30 p.m.
  Baroness Byford: My Lords, I, too, thank the Minster for bringing forward Amendment No. 118. Perhaps I may add a few words here because I also made some points on the issue. The first referred to the fact that I do not believe that this provision includes wildlife. We are grateful that it obviously deals with the issue of the shooting of grouse, but it does not actually include wildlife. I am sure that we all believe that it should.
  Secondly, subsection (2) of the amendment refers to,
  "taking such steps as may be prescribed".
  Does the Minister know whether notice will have to be given as regards the time during which that restriction will apply? The third point, which was raised by my noble friends, relates to the whole question of lambing in the hill areas and still remains to be answered.
  Perhaps I may return to the wildlife point. Has the noble Lord considered the question of those birds that come to this country and rest on the marshes or on the other lands which are not defined in the legislation? That is why it would help enormously if wildlife were included in the provision. I shall not refer to the other amendments because the Minister will cover them.
  Amendment No. 151 seems to me to have been rather strangely placed on the Marshalled List. I am grateful to the noble Lord, Lord Dubs, for drawing attention to it. We may find that there are some honeypot sites on access land. It is important, therefore, that there should be some provision as regards dog fouling. Some local authorities may believe that the dog fouling Act of 1996 is relevant in this respect and that it should be included. That is the reason for tabling Amendment No. 151.
  Lord Dubs: My Lords, perhaps I may make a brief comment. I was trying to understand the significance of Amendment 151. However, I believe that the noble Baroness has helped me. I understand that there have been occasions when dogs have fouled land with toxocariasis, which has had a damaging effect on farm animals. My concern is whether the amendment would provide some protection in those instances where necessary.
  Lord Whitty: My Lords, when responding to the previous group of amendments, I said that I thought we had struck the right balance. It is clear that some people wish to go further, but I am sticking to my balance. That inevitably means that some noble Lords will be disappointed. Perhaps I may explain that in terms of Amendment No. 118.
  Because of the particular use and nature of grouse moors, we have recognised that it is sensible to refer to the restriction in relation to grouse moors. When we are talking about East Anglian heathland, which has a variety of uses and a variety of different activities taking place on it, that is an entirely different issue. To some extent the distinction is arbitrary, but we believe that that is the right balance. Similarly, in relation to lambing, we have recognised that there would be a difficulty if a dog got into an enclosed area where lambing was taking place. We have not extended that to cover hill lambing in all circumstances beyond the general restriction on dogs in the vicinity of livestock. So there is a balance here. I should like to stick to the balance reflected in Amendment No. 118.
  I turn now to the other queries on Amendment No. 118. I can tell the noble Earl, Lord Caithness, that the plural does include the singular in this case. The prescribed steps will be set down in regulations by the Secretary of State or the Welsh Assembly. That will deal with the period of notice to which the noble Baroness, Lady Byford, referred. I shall consider whether the term "owner" is consistent with its usage elsewhere in the Bill, provided that the noble Earl does not think that the term "entitled owner" confines the proposition to Members of this House!
  Most of my remarks concern Amendment No. 45. The noble Lord, Lord Marlesford, asked whether I was correct in what. I said previously. I believe that correctly stated that owners can reach an agreement with a countryside body to relax restrictions. Owners can allow their own dogs, or permit others to allow their dogs which would otherwise be required to be on the lead, to run free on their land provided that land is not subject to other restrictions.
  As regards Amendments Nos. 46 and 49, I have already indicated that at Third Reading we shall bring forward an amendment on the issue of short leads that would apply in every context in which leads are required.
  1080
  Amendment No. 151 relates to dog fouling. I recognise that there may be problems in this area. Our understanding is that local restrictions or bylaws are already available to local authorities to deal with this problem in "honey pot" situations or in any other situation where dog fouling has become a serious menace to livestock or to humans. I believe that that matter is already covered and that local authorities already have the relevant powers. I hope therefore that my noble friend Lord Hardy will not press his amendment because I do not consider it to be necessary.
  The Earl of Caithness: My Lords, before the noble Lord sits down, will he comment further on what steps he has in mind? Will there be consultation on those steps? Will the relevant resolution be affirmative or negative?
  Lord Whitty: My Lords, I understand that the resolution will be negative in this context. However, there will obviously be consultation on the regulations.
  Lord Hardy of Wath: My Lords, I shall withdraw my amendment. However, I take the point that the noble Lord, Lord Marlesford, made. The amendment was tabled to try to clarify a situation. I believe that it would have done so, had it been accepted. As matters stand, I certainly expect unnecessary litigation to be put in train as the years pass. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Deputy Speaker (Lord Ampthill): My Lords, I have to inform the House that this is without exception the most eccentric grouping that I have encountered in over 20 years sitting on this Woolsack.
  [Amendment No. 46 not moved.]
  Lord Whitty Lord Whitty moved Amendment No. 47:
  Page 65, line 19, leave out sub-paragraph (2).
  The noble Lord said: My Lords, I beg to move.
  The Deputy Speaker: My Lords, are you sure? I do not believe that you have spoken to it.
  Lord Whitty: My Lords, I believe that Amendment No. 47 is consequential on Amendment No. 118. However, I shall check that.
  The Deputy Speaker: My Lords, I apologise to the noble Lord. He spoke to Amendment No. 47 with Amendment No. 45, or perhaps he did not. However, we shall assume that he did.
  On Question, amendment agreed to.
  Lord Whitty Lord Whitty moved Amendment No. 48:
  Page 65, line 21, leave out ("apply to a person who") and insert ("entitle a person to be on any land if he").
  On Question, amendment agreed to.
  [Amendment No. 49 not moved.]
  Viscount Bledisloe Viscount Bledisloe moved Amendment No. 50:
  Page 65, line 23, at end insert—
  ("(2) Section 2(1) does not apply to a person who at night takes onto the land in question, or allows to enter or remain on that land, any dog.
  (3) In sub-paragraph (2), "night" means the period from one hour after sunset to one hour before sunrise on the following day.").
  The noble Viscount said: My Lords, the amendment draws together the two vexed questions of night times and dogs. Let us assume, as the House has decided, that there is to be night access and access for dogs. I suggest that it is wholly unreasonable that dogs should be allowed on land, off leads and at night. The scope for damage by them is enormous. The ability to control them is nil because one cannot see whether they are on a lead. None of the reasons advanced for being allowed to take a dog on land applies at night.
  Surely the Government can accept that it is not desirable to have dogs on land at night. Birds which are disturbed do not go back to their nests. There is more likelihood of sheep being disturbed and unable to reassemble. The reasons advanced for night access have nothing to do with taking a dog, in particular a dog off the lead. I beg to move.
  Baroness Byford: My Lords, I have put my name to the amendment. I shall not waste the time of the House. I support the amendment.
  Lord Williamson of Horton: My Lords, I, too, support Amendment No. 50. It is a little different from previous amendments. The substance of the Government's position on dogs is set out in paragraph 5 of Schedule 2; namely, that a dog can be on a lead in the vicinity of livestock but there are restrictions. We are talking about night time. It will be difficult to operate that provision at night time. I believe that it is reasonable to make the general amendment to restrict dogs off a lead during the night hours.
  I said earlier that I hoped the noble Lord would be able to reach a century before close of play. If he accepts the amendment, he will have at least half a century.
  The Duke of Montrose: My Lords, I support the amendment. Although I do not disagree with the reasons given by the noble Viscount, Lord Bledisloe,
  1082
  I should like to approach the issue from another angle. Disturbance to wildlife and animals is an important issue. They are more vulnerable at night. One may meet someone at night with a dog, without knowing his purpose. A dog is one of the main tools used by the rustling and poaching fraternity.
  The noble Lord, Lord Dubs—he is no longer in his seat—asked earlier what evidence we had of disturbance in the Lake District. I cannot give him any. However, I was speaking last week to a gentleman in our area who can be described as a game warden. He polices wildlife sites over an area of at least 20 to 30 square miles. He told me that in the last year he has had to speak to between 30 and 40 people who were undertaking activities which were detrimental to, or not acceptable in, our area.
  The noble Lord, Lord Judd, said that he likes to enjoy the countryside without new technology. There is much to be said for the more staid era that used to surround us. Some people would probably enjoy driving a horse and carriage down Piccadilly. They should be allowed to do so if they would like to. However, some people in the countryside now use new technology, and none more so than those who want to gain access at night for illegal purposes.
  I support the amendment because of the increasing problem of poachers and rustlers, who use a combination of new and old technology. I was given one example that shows the lengths to which people are ready to go. Landowners have to try to guard against lurcher dogs. People with lurcher dogs now hire a van to take the dogs into the country. The van can no longer be confiscated if they are accosted and accused of indulging in poaching. They get a very strong light with a red filter and drive on to the moors to look for deer. They shine the light until they catch a deer in the beam. They then let the dogs go. The deer does not see what is happening until the dogs are on it.
  That is one way in which dogs are a danger at night. Another problem is rustling sheep, which cannot be done at night without a dog. All sorts of serious problems will result from allowing people access to the countryside at night with dogs. I support the amendment.
  11.45 p.m.
  Lord Marlesford: My Lords, I, too support the amendment. The Bill is putting Labour's rural vote on thin ice. The issue of night-time access will dig a hole in that rural vote. Perhaps it has nothing to do with me if the Government wish to do that. If they persist with freedom for dogs at night on access land, major discontent with the Government could easily be generated. I am not particularly worried about that, but as a supporter of the Bill I am more worried that

  1083
  the provisions could help to bring it into discredit. I ask the Government to think again seriously about the issue.
  Lord Whitty: My Lords, I have already said that I believe that we have struck the right balance. Some of the activities that have been mentioned are clearly criminal offences in any circumstances, such as the use of dogs for poaching and rustling. Access provisions would not condone or connive at that.
  Had the amendment been more reasonable, it might have had more support, although not from me. However, it is a blanket exclusion of all dogs, whether on a lead or not, from all access land from one hour after sunset. The noble Lord, Lord Marlesford, talks about alienating rural dwellers. Under the amendment, anyone who wished to go out after half past four on a winter's night in the North of England to exercise their dog on registered common land would be banned from doing so. That would be absurd.Even those who see some merit in placing some restrictions on dogs on access land could not reasonably support such a blanket provision. People who live in the countryside would undoubtedly be upset if they were caught by the ban because they had strayed from their land to their neighbour's land with a dog on a lead. I suspect that that was not the intention of the noble Viscount, Lord Bledisloe, but it would be the effect of the amendment. The noble Lord, Lord Williamson of Horton, misunderstood that. He referred to dogs off leads, but dogs of any sort in any context would be covered. That is not acceptable.
  I believe that we have struck the right balance. People should be able to walk their dog at night on access land. However, in any event, I believe that if noble Lords were to give the matter a moment's thought they would realise that a good proportion of the rural vote—if the noble Lord wishes to speak in electoral terms—would be quite upset were this amendment to be carried. Therefore, I hope that the noble Viscount will not press it.
  Viscount Bledisloe: My Lords, I accept that there may be rare circumstances in which this amendment goes too far—perhaps with regard to small patches of common land. However, the force of the amendment exists in relation to almost all access land, and the noble Lord has given no answer to that. In order that I may deal with the few occasions on which he has made a valid point, I beg leave to withdraw the amendment and I shall deal with those points at the next stage.
  Amendment, by leave, withdrawn.
  Baroness Byford Baroness Byford moved Amendment No. 51:
  Page 65, line 23, at end insert—
  1084
  (" . Section 2(1) does not apply to a person who, between the hours of sunset and sunrise, takes on to access land, or allows to enter or remain on access land, any dog.").
  The noble Baroness said: My Lords, Amendment No. 51 is grouped with Amendment No. 50. Although the noble Viscount has decided to withdraw his amendment, I am not sure that I am so happy to withdraw mine. I do not believe that the Minister responded to it completely satisfactorily. The most important issue is that of having dogs in the dark and the destruction that that causes. Also at issue is the safety of dog owners who lose their dogs at night. It is quite frightening to lose one's dog at night. I certainly wish to test the opinion of the House on this amendment.
  11.52 p.m.
  On Question, Whether the said amendment (No. 51) shall be agreed to?
  Their Lordships divided: Contents, 22; Not-Contents, 50.

  Division No. 3

  CONTENTS

  Arran, E.

  Jopling, L.

  Astor of Hever, L.

  Luke, L.

  Attlee, E.

  Mancroft, L.

  Bledisloe, V.

  Marlesford, L.

  Bridgeman, V.

  Monson, L.

  Burnham, L. [Teller]

  Montrose, D.

  Byford, B.

  Northbrook, L.

  Caithness, E.

  Peel, E.

  Cavendish of Furness, L.

  Rotherwick, L.

  Glentoran, L.

  Selborne, E.

  Henley, L. [Teller]

  Williamson of Horton, L.

  NOT-CONTENTS

  Addington, L.

  Greaves, L.

  Amos, B.

  Grenfell, L.

  Ampthill, L.

  Hamwee, B.

  Andrews, B.

  Hardy of Wath, L.

  Bach, L.

  Howells of St. Davids, B

  Barker, B.

  Hoyle, L.

  Berkeley, L.

  Hughes of Woodside, L.

  Blackstone, B.

  Jay of Paddington, B. (Lord Privy Seal)

  Bragg, L.

  Brett, L.

  Judd, L.

  Burlison, L.

  McIntosh of Haringey. L. [Teller]

  Carter, L.[Teller]

  Cocks of Hartcliffe, L.

  McIntosh of Hudnall, B.

  Cohen of Pimlico, B.

  Mar and Kellie, E.

  Crawley, B.

  Massey of Darwen, B.

  Davies of Coity, L.

  Miller of Chilthorne Domer, B.

  Desai, L.

  Morgan, L.

  Dubs, L.

  Nicol, B.

  Elder, L.

  Puttnam, L.

  Falconer of Thoroton, L.

  Ramsay of Cartvale, B.

  Farrington of Ribbleton, B.

  Sainsbury of Turville, L.

  Fyfe of Fairfield, L.

  Sawyer, L.

  Gale, B.

  Thornton, B.

  Goldsmith, L.

  Warner, L.

  Gordon of Strathblane, L.

  Whitty, L.

  Graham of Edmonton, L.

  Young of Old Scone, B.

  Resolved in the negative, and amendment disagreed to accordingly.
  Midnight
  [Amendment No. 52 not moved.]
  Baroness Byford Baroness Byford moved Amendment No. 53:
  Page 65, line 23, at end insert—
  (" . Any person who fails to comply with any restriction under paragraph 4 or 5, or any other restriction on dogs imposed under Chapter II, is guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.").
  The noble Baroness said: My Lords, I suspect I know the answer before I start but I shall still move the amendment. It introduces an offence which renders a person on summary conviction liable to a fine not exceeding level 1 on the standard scale. In my view, that offence would need to be well publicised in advance so that responsible owners would have nothing to fear.
  This evening, we have gone through the motions of putting forward these very important amendments and, unfortunately, the Government do not want to listen to what we say on the introduction of offences. Later, when this Bill is enacted, they may well wish that they had done so. That is what Amendment No. 53 seeks to do. I beg to move.
  Lord Monson: My Lords, it will not surprise your Lordships to know that I support this amendment as my name is down to it. It may well be, as the noble Lord, Lord Whitty, argued in responding to Amendment No. 42, that breaches of the restrictions on dogs do not justify an exclusion order. But that does not mean that such breaches do not deserve some modest sanction.
  An analogy might be with the riding of a bicycle on the pavement. One can well understand why cyclists may wish to do that—to avoid the dangers posed by heavy car and lorry traffic. Quite a lot of the time it may do no harm, particularly in the evening when there are very few pedestrians about, just as, for example, it may be that dogs do no harm if they are allowed to romp about in the month of May. But at other times, it does do harm. Pedestrians, particularly if they are elderly or infirm, may be bumped into or knocked over. Other more agile pedestrians have to jump out of the way. That is why the Government, quite rightly, make riding a bicycle on the pavement a criminal offence punishable by a small fine, even though not all of the time does it present any problem.
  The Minister suggested earlier that the matter could be dealt with through local by-laws. Nothing could be better calculated to confuse the public. Not everybody knows which district they are in when they go walking on a moor or mountain. It would be far better to have a sanction—such as a small fine on scale 1—that is well understood by everybody. One accepts that sanctions
  1086
  should not be extreme but to leave it to local authorities to propose by-laws seems crazy. If the Government cannot make a favourable response tonight, I hope that they will seriously consider the matter between now and the next stage.
  Lord McIntosh of Haringey: My Lords, I assure the noble Lord that I will not pursue him onto the pavements or to rely on by-laws as the main solution.
  Failure to adhere to restrictions on dogs should lead to the loss of the statutory right, with the normal consequences of trespass where appropriate. We do not wish to criminalise behaviour that does not in itself cause damage and that might be committed inadvertently
  Where dogs actively worry livestock or are allowed to roam freely on fields or enclosures where there are sheep, the Dogs (Protection of Livestock) Act 1953 provides for sanctions under criminal law. Where there is a problem in any specific area in addition, by-laws may be made if necessary to invoke the criminal law.
  When considering new criminal sanctions, we ought to bear in mind the scope of the access, which will be a modest right for the purposes of quiet recreation on foot. We expect its impact, in general, to be limited. Where people step outside the bounds of the right by, for example, allowing their dogs to roam off the lead, the impact of their behaviour would be the same under the new right as at present. Therefore the sanction should be the same. I hope that the noble Baroness will not press the amendment.
  Baroness Byford: My Lords, I thank the Minister but I am slightly disappointed. The noble Lord said that the Bill allows people quietly to enjoy the countryside. No one suggests that the majority of people will do otherwise. But throughout the afternoon and evening we have been trying to point out that in this day and age, sadly, there are people who go about not just quietly enjoying the countryside. The Bill has no teeth in enforcing sanctions against some of the things that we fear will happen. I suspect that the Ministers—who are smiling among themselves—do not believe that there will be a problem; but there will. At this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Glentoran Lord Glentoran had given notice of his intention to move Amendment No. 54:
  Page 65, line 23, at end insert—
  (".—( ) Any person who fails to comply with paragraph 4 or 5 and who intentionally or recklessly allows a dog to disturb game is guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.
  ( ) In this paragraph, "game" includes hares, pheasants, partridges, grouse, heath or moor game, black game, woodcocks and snipes.").
  The noble Lord said: My Lords, there has been continuing discussion or battle about the creation of offences or introducing sanctions and several debates about dogs—-some more complicated than others. The Minister has given some way, so I do not propose to move Amendment No. 54. But, after reading Hansard, I shall decide whether or not to return to the issue.
  [Amendment No. 54 not moved.]
  Clause 3 Power to extend to coastal land]:
  The Earl of Caithness The Earl of Caithness moved Amendment No. 55:
  Page 3, line 4, at end insert—
  ("( ) Before making such an order, the Secretary of State shall consult appropriate bodies.").
  The noble Earl said: My Lords, we are making some progress. When we last discussed this issue in Committee, it was at 2.45 a.m. We are now debating it two and a half hours earlier. As this is such an important clause, I had hoped that we would reach it at a more reasonable hour.
  Clause 3 is perhaps the most obnoxious clause in the Bill. It gives huge powers to the Secretary of State to make determinations and regulations and totally to ignore Parliament. The making of an order to extend access to the foreshore and to the land that borders the foreshore, including farmland, land under managed retreat, vulnerable salt marshes or the habitats of sea and marsh birds is a highly complex issue. Yet here we are allowing the Secretary of State to make an order, without any consultation specified on the face of the Bill, that could affect vast areas of land.
  I believe the fact of the Secretary of State having compulsorily to consult appropriate bodies should be on the face of the Bill. The Minister may well reply that there was a consultation period last year. That consultation period was a derisory four weeks. It was an insult to those involved in this area of land. I remind the House that there are over 240 agencies involved in retreat land. How can a sensible response be obtained in four weeks?
  It is also worth bearing in mind that the Countryside Commission for Wales has stated its view that a statutory right of public access to coastal land is untenable. But the Government have ignored that advice and ploughed ahead with the clause.
  I dislike the clause intensely but we shall deal with that in relation to Amendment No. 57. If the clause is to stay, it is essential that the fact that the Secretary of State should consult appropriate bodies is on the face of the Bill. I beg to move.
  Baroness Byford: My Lords, I support my noble friend's amendment and in doing so I shall speak also to Amendment No. 56. As the Bill is drafted, any land adjacent to the coast could have the right of access imposed upon it, including arable land, improved
  1088
  grassland or woodland. Moreover, adjacent land does not need to adjoin the coast or be contiguous with it. It could be separate parcels of land some distance away. Halsbury's Laws of England comments:
  "The expression 'adjacent' has in ordinary usage no precise and uniform meaning, but is not confined to places adjoining and includes places close to or near".
  As it stands, the Bill would accordingly allow land near to the foreshore, but not necessarily adjoining it, to be included in any statutory extension of access land on the coast. That gives too much scope for quite separate parcels of land on the coast, not adjoining the foreshore, to be made subject to the right of access. The amendment would provide a much more targeted approach.
  Baroness Young of Old Scone: My Lords, I commend the accuracy of the noble Earl, Lord Caithness, in discerning that we are debating this matter two hours earlier than in Committee. Unfortunately, when the matter was considered in Committee, I was asleep in the Library and so I did not have the opportunity to comment on it and to add the views of English Nature to those of the Countryside Commission for Wales. I was gratified to discover on reading Hansard that the Minister had made a commitment that there would be a full regulatory impact assessment followed by consultation on the possibility of including coastal land within the definition of open country. The combination of a regulatory impact assessment and consultation is welcome.
  English Nature as well as the Countryside Commission for Wales has considerable concern about the blanket inclusion of coastal land as access land. Coastal land varies in its sensitivity. Some categories of coastal land are extremely sensitive; for example, in the case of a bird colony just one person walking through the land can damage it for a number of years, whereas other types of coastal land, such as sandy beaches, where there is already considerable access, are pretty robust. I ask the Minister whether, if access to coastal land is ever to be granted as a statutory right, he will consider that future consultation should be about selective application of the right only to non-sensitive categories of coastal land.
  12.15 a.m.
  Lord Whitty: My Lords, noble Lords will be familiar with the background to the issue. The consultation paper covered it and the agency recommended that we should cover coastal land. Clearly, because of the many sensitive issues raised by noble Lords tonight, there was no time to take a firm decision one way or the other. We therefore want to retain in the Bill the ability to extend access land to coastal land.
  If we were to go down that road, many safeguards are built into the Bill. At the time of Second Reading in another place, my colleague Michael Meacher gave two important undertakings: first, that there will be a regulatory impact assessment and, secondly, that there will be a full process of consultation. The nature of that

  1089
  consultation will to some extent depend on the outcome of our experience of the operation of the right of access over mountain, moor, heath and down. But the commitment to full consultation clearly exists and I hope that that reassures the noble Earl that full consultation would be required before any part of coastal land was triggered.
  The outcome of that consultation could be the general extension of the right of access to coastal land or a more restricted definition. Alternatively, it could be something closer to what we have in the Bill for other forms of access land; namely, that coastal land in general would be access land but that certain parts of it would be excepted. However, we are not at the stage of being able to define that in the way suggested by the amendment of the noble Baroness, Lady Byford, which limits it to cliff, bank, barrier and so forth. It would exclude the possibility of other coastal land being included and would restrict the definition to land which adjoins the foreshore rather than land which is adjacent to it.
  We would come to those issues were we ever to go down this road and they would be covered by both the regulatory impact statement and the full consultation. Therefore, it is built into the process that it would be wrong to try to restrict the definition as suggested by the noble Baroness's amendment at this stage of the proceedings, long before any decision in principle has been taken.
  I hope therefore that noble Lords are reasonably assured that the consultation would take place before we ever went down this road.
  Lord Marlesford: My Lords, before the noble Lord sits down, will he say whether I am right in thinking that although there is an undertaking from the Government to consult, no such obligation exists for subsequent governments and that the ability to extend without consultation will remain on the statute book?
  Lord Whitty: My Lords, there are general provisions for consultation in any of the definitions of "access land". Those provisions apply to this as they do to other clauses of the Bill and therefore I believe that future governments would be constrained to engage in consultation, just as much as we would.
  The Earl of Caithness: My Lords, while I welcome much of what the Minister said, perhaps I may press him further. How long does he expect a full consultation process to last? Will it be the same as last year's derisory effort of four weeks or will it be a more sensible period of time for the various bodies to take part? As I mentioned earlier, more than 240 agencies are involved in retreat land in south-east England. Will there be adequate time for them to give full replies? If the Minister could confirm that the consultation period would be in excess of six months, that would provide reassurance.
  Although there will be a consultation period, it is clear that Parliament will be no part of it. The Minister said that we would come to the question of definitions
  1090
  when the regulations were laid. We shall not. At that time we must either reject them or accept them; we shall not be allowed to enter into the kind of debate in which noble Lords are now engaged.
  To insert a clause like this is a real abuse of Parliament, with all the complications referred to by the noble Baroness, Lady Young of Old Scone. On the previous occasion when noble Lords debated this matter, the noble Baroness had the privilege of speaking to it. I hope that the noble Baroness spoke for herself and not English Nature. While the latter may agree with the views of the noble Baroness, I hope that, like other noble Lords, she gave entirely her own views.
  In the light of my observations about the Countryside Council for Wales, it appears that the two main bodies on which the Government rely are against the proposals. Before I decide what to do with the amendment, perhaps the Minister will answer the further points that I raise.
  Lord Whitty: My Lords, I cannot be precise as to how long the consultation will take, but it will certainly be far longer than last year's exercise which was simply part of the research assessment of other land carried out by the Countryside Agency. In this context we are talking about full consultation with all the appropriate bodies to whom the noble Earl refers. Therefore the noble Earl can rest assured that before any regulations appear they will have been subject to a wide degree of consultation. While I cannot put a precise time on it, the noble Earl should not look at what happened last year, which was an entirely different exercise.
  The Earl of Caithness: My Lords, not even the fifth cavalry can help the Minister. Doubtless the noble Lord has already covered the point. I do not like the situation at all. I see no harm in the amendment.
  The Minister kindly said that the Secretary of State will consult the appropriate bodies, but he does not want that to be reflected on the face of the Bill. While I am unhappy with that, I see little point in taking the opinion of the House at this stage. I hope that the Minister will reconsider this small matter. This is a minor amendment which does not alter, or detract from, the Bill. However, it would provide a great deal of reassurance to those who are concerned about this issue. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Byford Baroness Byford had given notice of her intention to move Amendment No. 56:
  Page 3, line 11, leave out paragraph (b) and insert—
  ("(b) any cliff, bank, barrier, dune, beach or flat which adjoins the foreshore.").
  The noble Baroness said: My Lords, I should like clarification from the Minister as to whether, if the government of the day decide to include coastal land, it will be done under statutory instrument or will be subject to an affirmative resolution before the House.
  Lord Whitty: My Lords, one returns to the point about which the noble Earl complained. The answer is that it would be subject to affirmative resolution.
  [Amendment No. 56 not moved.]
  Baroness Byford Baroness Byford moved Amendment No. 57:
  Leave out Clause 3.
  The noble Baroness said: My Lords, we have studied carefully the debates in Committee on Clause 3 on 3rd October at cols. 1425 to 1432. My noble friend Lord Caithness spoke to this clause. We have taken into account the fact that the basis of the Bill is the 1949 Act. Surely the implementation of that legislation as it relates to access to the countryside can be regarded only as a dismal failure. We have also considered the volume of extra work that the Bill as it stands will create for local authorities in particular.
  The Minister and his colleagues have stated that they do not believe the Bill will prove to be very expensive once the mapping has been completed. We conclude they mean that the funding will be lean, if not sometimes mean. We are convinced that if the Bill is to be a success it will provide a considerable challenge to those concerned. However, above all we are opposed to a clause which puts such vast power at the disposal of the Secretary of State. I presume that the Minister's clarification that there will be an affirmative resolution will also affect the amendment. I shall wait for that resolution.
  Eleven clauses and three schedules were added over the Summer Recess to cover AONBs. That highlights why we express our concern about this part of the Bill. Surely no one believes that the whole of our coastline with its complex problems, so well summarised by my noble friend Lord Caithness, can be catered for in three subsections covering 13 lines. The noble Earl, Lord Caithness, stated:
  "Coastal areas are vulnerable, changeable and frequently dangerous … subject to high tides, moving sands and soils, quicksand and crumbling cliff edges … The Environment Agency is currently one of only 240 agencies involved in managed retreat".—[Official Report, 3/10/00; col. 1426.]
  These powers should not be given to the Secretary of State without a great deal more discussion and detail. I beg to move.
  The Earl of Caithness: My Lords, I support my noble friend on her amendment. I always thought this was a very good amendment. It stood in my name in Committee. I am absolutely delighted that my noble friend thinks it is so good that she has now taken the lead on the matter.
  My noble friend has covered many of the points that I wanted to raise. I shall not repeat what I said on Amendment No. 55 or what I said in Committee. This is a huge power that we will give to the Secretary of State. It is a process in which Parliament will have no real say. We will not be able to alter or have a detailed discussion on the regulations. Considering the amount of time we have spent on the Bill so far as concerns access land to mountain, moor, heath and down, we could spend the same amount of time and have as many concerns in relation to coastland.
  1092
  Parliament will be denied that opportunity. That is quite wrong. It is an abuse of the power of the authority of Parliament by an overwhelming executive who want to bulldoze through what they want without proper consultation. That is a disgrace. I hope that the noble Lord, Lord Whitty—I quite understand he has his job to do as a Minister—underneath the shell he has to wear on this occasion, also feels that this is totally the wrong way to go about legislating on such a complicated issue.
  Lord Whitty: My Lords, this is a potentially complicated issue. That is why we have not decided either way on it but will leave it for later widespread consultation and affirmative procedure. I underline that it is the affirmative procedure.
  I do not want to go over the issues again. Many people outside will probably be amazed that coastal land is not included within the Bill, but we came across all the complexities. There are complexities.
  It is right that when legislating on the rights of access we should provide within the Bill the possibility of extending it to coastal land, subject to wide consultation and subject to the affirmative procedure. This is not an example of the Government bulldozing things through. It is quite the opposite; it is the Government taking sensible precautions and operating with caution in a field where the majority of the electorate would expect us to move rather faster.
  Baroness Byford: My Lords, I am disappointed with the Minister's response. He says that it is a sensible response to our discussions. If I was perhaps feeling a little wry, I would say that I feel that we have not had sensible answers to some of our earlier debates where the Government were not prepared to give way. It is an important issue. The clause gives the Secretary of State huge powers. I would have preferred to see the clause deleted. The Government could have come back at a later stage and introduced a Bill which included coastal land. The Government are obviously not prepared to give way tonight. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 4 [Duty to prepare maps]:
  Lord Glentoran Lord Glentoran moved Amendment No. 58:
  Page 3, line 26, at end insert—
  ("( ) A map prepared under this section shall not show any land which is—

  (a) semi-improved or improved grassland,

  (b) grassland used for making hay, silage or haylage,

  (c) grassland managed as part of an arable rotation, or

  (d) grassland used other than to provide rough grazing for livestock.").

  The noble Lord said: My Lords, we had the bulk of the debate on this amendment when we discussed Amendments Nos. 3 and 6. I understood the Minister to move some way towards us with regard to semi-improved grassland and grassland used for making hay, haylage and so on. The Government have stressed that certain types of intensely managed land will not be

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  mapped. We remain unconvinced by that. However, I feel much nearer to being convinced than I was before we started our proceedings today.
  The amendment would direct the Countryside Agency and CCW not to map various types of intensely managed land. That would avoid doubt for users, owners and the Countryside Agency and CCW. It would assist the appeals process. In fact, it would be helpful, it would create clarity and should prevent considerable problems, which was the basis of our debate earlier today. It would be very welcome if the Minister could agree with me on that point and confirm that he has moved some considerable way towards our aim. I beg to move.
  12.30 a.m.
  Lord McIntosh of Haringey: My Lords, I have a long speaking note on this amendment. However, at the end of my speech on Amendment No. 3 I said that we would look again at this issue. I think it is better if I rest on that rather than respond to the amendment now.
  Lord Glentoran: My Lords, I thank the Minister for that. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 59 and 60 not moved.]
  The Earl of Caithness The Earl of Caithness moved Amendment No. 61:
  Page 3, line 33, leave out from ("feature") to second ("to") in line 34 and insert ("where the effect is").
  The noble Earl said: My Lords, I have brought forward this amendment from Committee stage because when we debated the matter previously the noble Baroness, Lady Farrington, said that she would take the matter away for consideration. I had very much hoped to see a government amendment to meet what the noble Baroness rightly surmised were the concerns of the Committee. Sadly, however, no amendment has been forthcoming.
  In Committee the noble Baroness said:
  "Any land so included would need to be clearly contiguous with a parcel of open country and be relatively minor in extent".— [Official Report, 3/10/00; co1.1448.]
  Although helpful in some respects, that reply was also wishy-washy. Perhaps I may press the noble Baroness to say what "clearly contiguous" means. What does "relatively minor in extent" mean? Those points concern many people. The Bill is designed to give access to mountain, moor, heath and down, yet in the Bill there is a blanket provision to extend it to adjacent land without any qualification as to the size, shape or nature of that land. It is an important point which requires a great deal more clarification and a tighter definition. I beg to move.
  Lord Whitty: My Lords, the intention of the amendment is to remove a sensible discretion of the Countryside Agency in its mapping process so that land which is mapped can be more easily identified both by owners and users. We expect the countryside bodies to exercise their discretion with care and not
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  seek to embrace land which is not integral to the open country or which is incompatible with the right of access. If any additional land is included in maps of open country as a result of this discretion, landowners will have the right of appeal. However, we are referring here to relatively small and obvious additions or subtractions from the designation of open countryside.
  In Committee the noble Earl suggested that that could include all kinds of features such as farmland, river banks, foreshore and so forth. That misunderstands the scope of what is intended here. It enables the countryside body to extend the area of open countryside from its natural boundary only to the nearest physical feature beyond. In the vast majority of cases, that will probably mean an extension of only a few tens of metres to a stone wall, fence or perhaps to the bank of a stream. It will not allow maps to include vast areas of new farmland, foreshore or woodland, about which the noble Earl was concerned.
  The discretion is sensible and will meet the point about which a number of noble Lords have expressed concern; namely, exactly how the punter is to understand where access land begins and where it ends. The scenarios depicting an abuse of this facility envisaged by the noble Earl are misplaced.
  The Earl of Caithness: My Lords, I am reassured by some of the Minister's words. However, again, nothing has been put on to the face of the Bill to implement what he has said. I understand the thoughts of the noble Lord; they are exactly what I hope my thoughts would be were I sitting in his place. But that is not what the countryside body will think. Under the Bill it will have total discretion to include adjacent land of any shape, size or description—including river banks. No curtailment has been put in place.
  I hope that the countryside body will read with care what has been said by the Minister. Can he confirm one further important point; namely, that the extension of adjacent land will be to a physical feature on the ground, not a physical feature on a map? It will be no good if representatives of the countryside body sit behind their desks and say, "We'll just include that bit of land because it will round off the map nicely to make a square". This must refer to a physical feature on the ground in order to ensure that this part of the clause will work. I should be glad of the Minister's confirmation.
  Lord Whitty: My Lords, a physical feature is a physical feature. It is not a graphical feature.
  The Earl of Caithness: My Lords, that is of some help. I fear that, again, the Government will cause many problems for themselves here. I foresee a huge number of appeals being lodged by owners because nothing constructive has been added to the Bill. The provision is still far too open ended. Once more, the Minister has left himself open. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Byford Baroness Byford moved Amendment No. 62:
  Page 3, line 35, at end insert—
  ("(c) shall incorporate a minimum of one primary access point per area of open country or, where the boundary of such an area is forty miles or longer, per twenty miles of boundary, and
  (d) may incorporate secondary access points.
  ( ) In this section—

  (a) a primary access point shall provide a minimum of—

  (i) a car park for not less than six vehicles,

  (ii) toilets, and

  (iii) an information point;

  (b) a secondary access point shall provide a minimum of an information point.").

  The noble Baroness said: My Lords, this is a very important amendment. We discussed in Committee the ways in which people will find out where they can go and what they can do. We also discussed primary access points. I suspect that the Minister will tell me that my amendment is inadequate, but I should like to begin by putting forward the case for its inclusion. I accept that the drafting may not be perfect and that it may make too many demands, but I believe that this is an important point.
  In March this year the Royal Institution of Chartered Surveyors published a policy document on the implications of open access. The document makes a number of points, among which are the following.
  First, experience across the country suggests that the Act may increase total demand rather than simply spreading the existing demand across a wider landscape. Again, we referred to that in our earlier debates in Committee.
  Secondly, visitors to those parts of the countryside which are already open fall into three categories: those who park the car to look at a view and then perhaps take a gentle stroll. They appreciate the car parks, toilet facilities and cafes which often accompany such sites. Then there are those who walk quite long distances, but would prefer to walk on a footpath, following a signposted course. And, of course, there are the independent walkers, who bring their own sustenance, their own maps, their compasses and their ideas of where they wish to go. Thirdly, the management of access is essential and, to be effective, should consist of forward planning, provision of infrastructure, a behaviour framework of by-laws and information, and agreement on the funding and provision of effective wardening.
  At this point no one knows in what proportions the new access rights will attract visitors. It seems a fair bet, however, that an increasingly fit and comfortably-off retired population will take the opportunity to explore. Indeed, the noble Lord, Lord Northbourne, was definitely promoting a healthy attitude for walkers in his earlier amendment. Some of them will do so from the warmth and comfort of their car and some will seek "comfort facilities". Given a map which shows the location of car parks and toilets, they will plan their itinerary to include those facilities. Others will kit
  1096
  themselves out with thermos flasks and walking sticks and drive to a suitable starting location on which they have decided.
  They will be grateful for a place to park their car safely, and they will be grateful to have art information point which contains the latest news about areas that are closed, areas that are particularly worth visiting at that time, and suggested walks of specified lengths and grades of difficulty. The remainder will require little or nothing in the way of help and may even prefer public transport over the car.
  The amendment, we understand, is not at odds with the thinking of the Countryside Agency. It merely seeks to put on the face of the Bill a minimum requirement for service levels for visitors. It is not beyond the bounds of possibility that such a requirement would be greatly to the advantage of the agency, the wildlife bodies and the occupiers of the land, who could provide facilities at which visit ors may wish to spend their money. I am reminded of the ways in which the RSPB and other organisations raise money at places such as Minsmere and the National Trust at Dunwich.
  The detail of the amendment is self-explanatory, although we feel that it will be necessary to have a minimum number of secondary points simply to provide a means of showing those who lose their way where they are and where the nearest facilities or help may be obtained. No one should lose sight of the fact that this country has amazing weather and that sometimes, with little or no warning, hikers can be caught out. Those are the reasons behind the amendment. I beg to move.
  Lord Jopling: My Lords, perhaps my noble friend can explain who is to provide the facilities enumerated under paragraphs (i), (ii) and (iii) of her amendment. It seems to me that the cost of putting down car parks for not less than six vehicles—bearing in mind that one of those vehicles, or some of them, could be buses, which are very heavy and need solid foundations—lavatories and an information point will amount to a lot of money.
  If we are to agree to the amendment, it should be made clear on the face of the Bill that the provision of these facilities will be the responsibility of public bodies. It should certainly not be the responsibility of the landowners or occupiers of the land in that area of open country. Can my noble friend explain who will be responsible for doing this? My guess would be that if the responsibility for producing these facilities was in the hands of public bodies—they always seem to spend twice as much on providing facilities as the private sector—one could quite quickly get into the realm of £100,000. These are very expensive undertakings. I see a great deal of strength in the amendment and it has a great deal of merit. But if we are to accept it, it ought to make clear whose responsibility it is to provide these facilities.
  12.45 a.m.
  Baroness Miller of Chilthorne Domer: My Lords, I understand the reasons for wanting some provision on the face of the Bill at this point. Indeed, in Committee we debated an amendment about recommended access points. I have a number of difficulties with this particular amendment.
  First, I am not sure why we want to differentiate between a primary and a secondary access point. The important issue relates to how people will use the access onto the land. In summer, they may choose a popular access point at the top of a hill, but in winter they may choose one that is lower down. I can see the reason for having a recommended access point. Public information needs to be located somewhere. All along, we have advocated the importance of the public being able to see where the information is.
  As regards the second part of the amendment, I am much more nervous. I have no idea what the circumference of Dartmoor is, but I think that the number of toilet blocks that this might bring would be unacceptable to the people of Devon. There are other ways of achieving that. One of the huge benefits of local pubs is that, as well as providing the food and drinks, they provide the toilet blocks.
  I should not want to see car parks specified as a necessity at access points. Some national park authorities have led the way in getting rid of cars from sensitive areas and introducing a shuttle bus arrangement. Looking to the future, I do not think that car parks should be a major aspiration. We should consider other methods and it must be done on a local basis. Some access authorities will find car parks a necessity, but it should be up to them to think about how best to provide those facilities.
  Lord McIntosh of Haringey: My Lords, I have two kinds of problem with the amendment. First, I think that there is a misunderstanding about the role of statutory maps as opposed to non-statutory helpful maps for visitors. Statutory maps are about identifying mountain, moor, heath, down and registered common land. They are like definitive maps of rights of way. They provide the statutory data, but they are not what the public actually use. The public will use maps and guides showing the areas of open country and the main access information points and routes and any other valuable information.
  Government Amendment No. 104, to which I have referred, places a duty on countryside bodies to take action to ensure that the public are informed about means of access, as well as promoting information about people's access rights and responsibilities more generally. It is here that the information should be provided rather than on statutory maps.
  I know that the Countryside Agency has every intention of making available such non-statutory information. It has produced a paper on mapping for the National Countryside Access Forum. It has made it clear that access information points and means of access should be shown when the provisional and conclusive maps are issued. That is part of its policy and its approach.
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  In addition, I take account of what was said by the noble Lord, Lord Jopling, and the noble Baroness, Lady Miller. If we put the countryside bodies under an obligation to map statutory access points, would we not need arrangements for consultation, objection or appeal? If we create so-called "primary and secondary access points", what does that mean? Do we really want to require them to show where toilets and car parks must be provided for every area of open country? Moreover, what is an area? Are they discrete areas? Are they areas under single ownership? Indeed, as the noble Baroness, Lady Miller, said, we could have half the country covered with toilet blocks and car parks. There are practical reasons, as well as the main reason to which I referred, why these amendments would not be suitable.
  Baroness Byford: My Lords, I thank other noble Lords who have intervened. I should apologise to my noble friend for not saying this directly in my introduction because it would have helped, but I had assumed that the public purse would pay for this either through the Countryside Agency or through another body. I do not see this as being the responsibility of an individual; indeed, that would be totally unreasonable.
  As regards the comments made by the noble Baroness, Lady Miller, I can tell her that I had a problem with trying to work out how many sites there would be and where they would be. That is why I said in my introduction that I appreciated the fact that the amendment was not adequate in that respect. I may be able to explore the issue at greater length when we deal with government Amendment No. 104. I was trying to illustrate the great need that there is for people to know where to go and how to find the kind of information that they want.
  The noble Baroness also asked about the difference between the main primary access points and the secondary access points. The primary access point would provide greater facilities, whereas the secondary access point would have very minimal facilities and would not have the bigger complex that I imagine the primary ones will need to produce.
  The Minister referred me to Amendment No. 104 in relation to the question of how many points we have, where they are and how they operate. I shall, indeed, return to the issue when we reach that stage. But somewhere in this Bill we need to cover access points to enable people to find the kind of information that they need. I believe that that is generally agreed around the Chamber. At present, unless I have misunderstood the position, I do not see Amendment No. 104 as fulfilling that role: it sets out what should be provided by the code of conduct and other information. I do not believe that it makes provision for setting up and establishing the access points. That is the purpose of my amendment. I may be wrong, but obviously the hour is late. Perhaps we can clarify the position between now and Third Reading. I have not noticed any mention either in Amendment No. 104 or in the Bill as it stands of a duty to provide access points from which people can obtain information. If the Minister wishes to correct me, I shall be happy to step back on

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  the issue. But if not, perhaps we can return to the matter on Third Reading. I shall give the Minister time to think about it. I have not found any provision in the Bill that covers what I am seeking to achieve.
  Lord McIntosh of Haringey: My Lords, I did not cover that point because the amendment is about the mapping of access points. Indeed, it is about putting them on a statutory map. In so far as this is about the provision of access points, I said that we are of course in favour of such points and that we shall take whatever steps are necessary—I shall deal with that when we come to the next amendment—to ensure that there are access points. However, we do not believe that this amendment, which requires them to be provided for each area of open land, is the appropriate way to approach the matter.
  Baroness Byford: My Lords, I thank the Minister for that response. I have not actually referred to mapping in this amendment, apart from mentioning the area. That is why I was slightly thrown when the Minister—
  Lord McIntosh of Haringey: My Lords, I should not be doing this, but I shall respond very quickly. Such amendments are placed in a part of the Bill which specifies what the statutory maps contain. That is why this is an amendment about mapping.
  Baroness Byford: My Lords, I fear that we are indulging in exchanges across the Chamber in a way that we should not on Report. However, this is an important point. I hope that we shall discuss it more fully on another occasion. My biggest problem consisted of identifying "an area". I accept that my definition is not correct. However, at this stage I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 5 [Publication of draft maps]:
  [Amendment No. 63 not moved.]
  Schedule 3 [Delegation of appellate functions]:
  Baroness Byford Baroness Byford moved Amendment No. 64:
  Page 67, line 31, leave out ("require") and insert ("allow").
  The noble Baroness said: My Lords, the amendment seeks to substitute the word "allow" for "require". I commend the amendment to the House. I beg to move.
  Lord McIntosh of Haringey: My Lords, Amendment No. 64 would seem to have the effect that, if the appointment of a person to determine appeals was revoked, no person would be allowed to make fresh representations once another person was appointed. The Bill provides that no one should be required to make fresh representations but they may do so if they wish. The revocation of an appointment is rare. But if it does occur it must be right for it to be possible for the newly appointed person to hear afresh from a witness. The amendment would prevent that. I hope that the noble Baroness, Lady Byford, will not press it.
  Baroness Byford: My Lords, I thank the Minister for that reply. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 10 [Review of maps]:
  Lord Rotherwick Lord Rotherwick moved Amendment No. 65:
  Page 6, line 31, leave out ("ten years") and insert ("twelve months").
  The noble Lord said: My Lords, in moving Amendment No. 65, I wish to speak also to Amendment No. 67. I have previously declared an interest and I shall not repeat it now.
  In Committee we talked a little about reviewing maps in conclusive form. I note that we did so at about six o'clock in the morning. At least we are discussing the matter a few hours earlier this morning.
  The aim of these amendments is to ensure that information and guidance that could change during a year is disseminated to all those wishing to he informed through an up-to-date map, possibly a digitised mapping system that is reviewed annually. I have taken the example from the aviation world where maps are reviewed annually. I am advised that it is also the case with naval maps. The aviation maps referred to are topographic base digitised and maintained to CAA specification by the Ordnance Survey. An annual review of any changes may necessitate a new map for the next year to incorporate those changes. Thus aviators can be sure to be navigating in a safe and correct way. Like most people, from time to time I have difficulty reading maps and rely deeply on the new maps published each year. Would not the route the CAA takes be a sensible route for the Countryside Agency to take?
  Aviation maps not only show all the necessary aviation features including danger areas, prohibited areas and restricted areas, but also a considerable amount of useful information such as how to communicate with the relevant authorities for aerodromes, danger zones, restricted zones etc.; all information useful to planning a flight in or around such areas or to helping one during a flight especially if a problem occurs. Like most aviators I have on occasion been most thankful for that information.
  I believe that the best way to disseminate information is using a combination of tools such as maps, websites, fax polling and recorded telephone messages. I shall speak to Amendment No. 138 which deals with other ways of disseminating information and guidance other than by maps. However, maps are an important way to disseminate up-to-date information. I believe that a map that is not updated frequently would probably become obsolete in as little as three to four years and definitely after 10 years. Those accessing the countryside for enjoyment should have up-to-date information not only to enable them to enjoy their time in the countryside to the fullest but also to enable them to conduct themselves properly according to the guidelines and regulations.
  If the information they require is difficult to obtain or out of date, they may well put themselves in a hazardous situation. For example, a redundant mineshaft may become a hazard; or—perish the thought—another Chernobyl might occur. Mapping information should be used to disseminate those hazards in an appropriately short time. Out-of-date maps can also cause conflict between those accessing the land and wardens, land managers and owners. For instance, a diversion or changes may have occurred. The information must be correct with updates being incorporated within a year of their implementation. Unnecessary hazards or conflicting situations should be prevented if possible.
  What changes can occur in a year? There is the possibility of change to registered land and open country. I believe that land management practices, diversifications and development changes should be reviewed annually. Amendments Nos. 3 and 58 relate to silage and haylage. Agricultural land may have cultivation changes with improved pastures. Amendment No. 118 refers to the exclusion of dogs on grouse moors. Amendment No. 23 provides for exclusion orders which may need to be implemented. I am sure that there many other examples of changes in the countryside which need to be notified within one year.
  It is to be hoped that maps will contain information on more frequent changes, such as those to routes, names of access authorities, codes of practice, by-laws, public safety notes, wildlife conservation notes and other such information. If aviators and sailors can be treated to such up-to-date information, should not those accessing the countryside, and those involved in the countryside, also be treated in the same way? I beg to move.
  1 a.m.
  Lord Glentoran: My Lords, I support my noble friend's amendment. Mapping is a continuous process. Once the mapping process starts when the Bill becomes an Act, it must be a continuous, five or six day a week process. I know something of the marines, having been a commissioner for the Irish lighthouse service for some 16 years. It is compulsory for maritime charts to be updated on a continuous basis. With regard to shore lights, navigation aids and so on, notices to mariners are issued on a daily basis around the coast keeping mariners up to date with changes. It is compulsory for professional mariners and marine authorities continually to update and replace charts.
  Once this mapping process begins—it is the basis of the successful implementation of the Bill—it must be continuous with updating taking place daily or at regular intervals. I suspect that my noble friend is more nearly right than the Minister. New charts and new maps must be reissued and made available so that all users of the countryside have the most up-to-date information.
  Baroness Farrington of Ribbleton: My Lords, Clause 10 requires the countryside bodies to conduct a review of their maps of open country and registered common land no more than 10 years after they were issued or last reviewed. However, there are two factors that may cause the bodies to conduct a review sooner or later than that.
  First, the Secretary of State or the National Assembly for Wales may use their powers under subsection (3) to require reviews either more or less frequently than every 10 years. Secondly, the countryside body need not wait 10 years, or whatever duration is specified in regulations, before embarking on a review. It may conduct a review sooner if it thinks that there would be benefit in doing so.
  Amendments Nos. 65 and 67 would require the first and subsequent reviews to take place every year. That would amount to a requirement for an almost continuous review. That would give rise to a highly unsatisfactory situation, with the countryside bodies engaged in a constant cycle of consultation and appeals on maps. The maps would convey no certainty for the user or landowner, because they would be out of date almost as soon as they were published. Given all the consultation and appeals, annual reviews of the maps would be very costly.
  The Bill affords the countryside bodies discretion to review maps more frequently if they see fit, subject to reserve powers for the Secretary of State or the National Assembly for Wales to intervene to set a different minimum period for reviews. The amendments would cause both users and landowners to be constantly considering with the countryside bodies the status of land included, or not included, in maps of open country.
  There has been a fundamental misunderstanding in many of our debates on maps. We fully expect the countryside bodies to provide up-to-date information of the kind envisaged by the noble Lord, Lord Rotherwick, but that is not the purpose of the statutory maps. We have referred to that several times. The maps will show areas of land. They will not provide the detail and up-to-date information that the noble Lord expects and that the Government are providing for through the responsibilities given to the countryside bodies. I therefore hope that the noble Lord will understand that we cannot support the amendments.
  Lord Rotherwick: My Lords, I thank the Minister for her explanation, but I am disappointed. I view the maps as a means of giving the state of play at that time. If there is no device to enable people to determine the state of play, there will be more conflicts and difficulties.
  Baroness Farrington of Ribbleton: My Lords, I stress that up-to-date information must be available, but the maps are not the means of doing so.
  Lord Rotherwick: My Lords, I am sorry that the Minister misunderstood me. My amendments were based on how the aviation world works, where half-mil

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  maps are used very successfully for that purpose. It is easier to put information on the much larger scale maps that one would tend to use when going into the countryside. I was hoping that maps could be used in that way.
  Amendments Nos. 66 and 68 relate to the same issue. I shall not press this amendment, but it is important that information should be disseminated to the public, including maps showing the up-to-date situation. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Luke Lord Luke moved Amendment No. 66:
  Page 6, line 31, leave out ("ten") and insert ("five").
  The noble Lord said: My Lords, in moving Amendment No. 66, I wish to speak also to Amendment No. 68. To a certain extent, Amendment No. 66 follows the previous two amendments. I have taken considerable note of what my noble friend Lord Rotherwick and the Minister said. This matter was raised in Committee and I have read what the noble Lord, Lord McIntosh, said on that occasion.
  However, I believe the fact that the Bill is very complicated suggests that 10 years is too long. If the first tranche of maps is completed and then nothing is reviewed for 10 years, that predicates the possibility that everything will be right the first time. I suggest that it is quite likely that everything will not be right the first time.
  Whereas, for various reasons, one year may be too short, I suggest that five years would be a good compromise. That is what Amendment No. 66 seeks for the first review and what Amendment No. 68 seeks for subsequent reviews. I believe that it is essential that the period should be reduced to five years for the first review, and I should like to hear what the Minister says about that. I beg to move.
  Baroness Farrington of Ribbleton: My Lords, as the noble Lord, Lord Luke, said, Amendments Nos. 66 and 68 propose that the reviews of maps proposed under Clause 10 should take place every five years rather than every 10.
  We have given the matter careful consideration but, on balance, believe that 10 years is appropriate. We wish to promote a period of stability after the right comes into effect and we do not envisage that so many changes in land use will occur as to warrant a review within live years. We are confident that the very careful work which will be put into the initial set of maps will enable them to provide for a good number of years a solid foundation for the new right of access.
  However, should it be necessary, the Secretary of State or the National Assembly for Wales will be able to change the period for reviews and make them more frequent. Therefore, I hope that the noble Lord will feel that it is not necessary to press the amendment.
  Lord Luke: My Lords, I am not altogether happy with what the Minister said. However, in view of the
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  lateness of the hour, we shall consider the matter and possibly return with it at a later stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 67 to 69 not moved]
  Lord Glentoran Lord Glentoran moved Amendment. No. 70:
  After Clause 10, insert the following new clause—

  ACCESS LAND INFORMATION MAPS
  (" .—(1) The appropriate countryside body shall prepare "access land information maps" and shall issue these at the same time as any maps issued in draft form under section 5.
  (2) The access information maps shall, in relation to any area of land mapped under section 4—

  (a) show the possible location of any means of access to the land within the meaning of section 32 of this Act,

  (b) show the possible location of any notices which might be provided under section 19,

  (c) show whether areas of land mapped under section 4 are, or are not, accessible from any highway and distinguish between such areas where both occur on the same map,

  (d) in relation to any registered common land which is included on the map prepared under section 4, indicate whether any such land is—

  (i) common land within the meaning of section 193(1) of the Law of Property Act 1925;

  (ii) common land within the meaning of section 193(2) of the Law of Property Act 1925; or

  (iii) any other registered common land,

  and where common land of more than one type occurs on the same map, the access information map shall distinguish between them,

  (e) show any areas of land which are, in the view of the appropriate countryside body, excepted land within the meaning of Schedule 1,

  (f) show any areas of land which may, in the view of the appropriate countryside body, need to be subject to directions under section 23(1)(b) for the purpose of avoiding danger to the public.").

  The noble Lord said: My Lords, Amendment No. 70 concerns a duty to prepare maps showing additional information alongside draft maps of access land. The noble Baroness appeared to highlight that a misunderstanding about the maps exists between the two sides of the House. If I understood her correctly, I am very disappointed. If the maps are simply to be plain, statutory ordnance survey maps which show nothing more or less than areas of ground which are access land, I believe that that is a terrible waste of effort.
  I believe, and it would appear that the Government have resisted this so far, that including additional information on the draft maps could be helpful to all interests in assessing the implications of the designation of access land. The implications could include the need to provide new access points and notices to indicate the boundary of access land or to provide information to the public of closures and so on; to establish new rights of way to link parcels of access land to the highway network; to provide warden services or to ensure clarity between common land covered by the Act and other common land.
  A suggested solution is for the Countryside Agency and the Countryside Council for Wales to provide maps alongside the draft maps of access land that show all that information. That will enable the implications of the new right of access to be considered at as early a stage in the process as possible. The maps will be immensely useful to all interests in deciding what implications follow from the provision of access.
  I go further. If that work is done—if that form of mapping is put together—it will be the most superb creation that those of us who enjoy the countryside and wander into the wildernesses, such as they are in this country, could have—modern up-to-date maps using the latest techniques, showing all the needs a walker or long-distance hiker requires. To fail to do that on the back of this Bill and the right that is being given to the people of this country would be a serious disappointment. I beg to move.
  1.15 a.m.
  Lord Rotherwick: My Lords, I shall bring forward Amendment No. 138 later on this subject. So I will not say too much at this time. I agree with my noble friend that if the maps do not show a range of additional information there will be a good opportunity lost. In my experience, when one has civil aviation maps enabling a pilot to enter an aeroplane with just a map giving sufficient information for all his flights, I cannot see why it cannot occur on the land.
  Baroness Miller of Chilthorne Domer: My Lords, I feel that, from these Benches, we are not clear about what this amendment is trying to achieve. As I read the Bill, there is the process we discussed at length in Committee; that is, the statutory mapping process, which is necessary so that it is clear what land is in and what land is out. After that in my view the important point is that it must be done as soon as possible. The Ordnance Survey, on which the public rely to use land, uses the information that the countryside bodies have gathered to produce in its explorer and leisure ranges as comprehensive an explanation as possible of access land—the way one arrives at such land and the facilities around it. The Ordnance Survey maps should be very full and comprehensive. It is that interface between the Countryside Agency process—which is what the Bill sets out—and how Ordnance Survey take on that work that is very important.
  It is crucial that the public have that full information. If the Minister has the information as to how that interface will happen at this stage that is wonderful. If not, it is something about which we shall be anxious to hear—the Government's expectations on the agency passing on information to Ordnance Survey—at the next stage of the Bill.
  Baroness Farrington of Ribbleton: My Lords, I am getting a little worried about the noble Lord, Lord Rotherwick, who still seems determined to use the
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  statutory maps almost as a means of making his aviation safer. I hope that between us, we can manage to convince him that it would not be safe.
  Lord Rotherwick: My Lords, I think that the Minister understands me. I already have my aviation map which makes my flying safe. I was hoping the same process could be used to make perambulating on the ground safe as well.
  Baroness Farrington of Ribbleton: My Lords, I am sure that I can reassure the noble Lord. For example, I have known the noble Lord, Lord Greaves, for many years as a Lancashire county councillor and he does not need a map that will take him up and down above the ground. It is not quite the same sort of map that we are looking for.
  We have tabled an amendment which will be debated later which will place a duty on the countryside bodies to ensure that the public are informed of means of access and their rights and obligations under Part I.
  It will, of course, be important to ensure that, as the noble Lord, Lord Glentoran, said, users have information about which land is subject to the right and how to get onto it. We said before that we expect such information, as the noble Baroness, Lady Miller of Chilthorne Domer, said, will be shown on Ordnance Survey maps, just as such information is already shown on maps of access land in the Peak District.
  These amendments would require the countryside bodies to make judgments concerning the possible positioning of means of access and notices and whether the land will need to be subject to a direction because there is a danger to the public.
  Those issues do not need to be assessed at the early stage when draft maps of open country are issued. Means of access and notices are not, in any event, matters for the countryside bodies to address. Those responsibilities rest instead with the access authority.
  The new duty on the countryside bodies will secure much, if not all, of the information which this amendment seeks. We do not think that the countryside bodies should have to prepare additional maps to show that information. It can be presented better in other ways or on Ordnance Survey maps. We want that right of access to be seen in relation to all the other access opportunities available to the public. That will be better achieved by the new information duty that we are proposing, rather than a requirement to produce discrete access maps.
  However, this amendment would be unduly prescriptive. It would require the countryside bodies to issue maps containing data not in their control, or at an inappropriately early stage in the development of maps of open country. It would require them to draw up detailed maps of excepted land which will be obvious to all. It would require them to focus unreasonably on land from which the public should be excluded owing to dangers, when other types of exclusion should receive similar attention. The new information duty on the countryside bodies will ensure

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  that the best elements of this amendment can be achieved on a much more flexible and up-to-date basis. For that reason, I ask the noble Lord, Lord Glentoran, not to press the amendment.
  Lord Glentoran: My Lords, I heard what the Minister said and I listened very carefully to her. I preface my remarks by saying that I believe that the noble Baroness, Lady Miller of Chilthorne Domer, has got it absolutely right. She enunciated almost what I was trying to say, and she did so rather more clearly. The Minister did not address the question which the noble Baroness, Lady Miller, posed in relation to the interface between the statutory map, which will apparently only show access land, and the Ordnance Survey maps. The penny has only just dropped tonight that there will be two separate processes. Ordnance Survey will go on in its usual brilliant way and alongside it will be a bureaucratic map put together by a whole lot of different people at some expense. If I go on the moors or mountains, will I need two maps—one that tells me where I can walk and another that helps me to find the way?
  Baroness Farrington of Ribbleton: My Lords, I can agree with the noble Lord that the noble Baroness,
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  Lady Miller, got it absolutely right. The original, statutory map merely identifies the land to which the Bill refers and access to which would be available—all other things being equal. Then there would be a process involving the access authority taking a lead role to identify the detail. It is not a case of two different maps but an Ordnance Survey map to which additional information can be added. The two maps would run in parallel in the way that the noble Lord fears were his amendment to be accepted.
  Lord Glentoran: My Lords, on that happy note, I thank the noble Baroness for her patience and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Farrington of Ribbleton: My Lords, I beg to move that consideration on Report be now adjourned.
  Moved accordingly, and, on Question, Motion agreed to.
  House adjourned at twenty-seven minutes past one o'clock.