HL Deb 01 November 2000 vol 618 cc1032-108

Consideration of amendments on Report resumed on Clause 2.

[Amendment No. 23 not moved.]

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 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 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 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 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 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 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 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.

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 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 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 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 moved Amendment No. 30: After Clause 2, insert the following new clause—

  2. cc1104-8