Lords Sitting of 7 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 Wakefield.

Stalking
Lord Harrison Lord Harrison asked Her Majesty's Government:
What action they are taking to reduce the harassment of 900,000 men and women each year by stalkers, as detailed in the Home Office report The Nature and Extent of Stalking.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, the law provides protection from stalking in the form of the Protection from Harassment Act 1997. Recent Home Office research indicates that the Act is being used effectively to combat incidents of stalking. Criminal prosecution is not, however, the only response; for example, the police may give a warning to nip such behaviour in the bud. The research pointed out ways in which the use of the Protection from Harassment Act could be improved. We are currently working on the recommendations contained in the report.
Lord Harrison: My Lords, I thank my noble friend for that Answer. First, does he agree that the figure of 900,000 instances of stalking may be an underestimate due to under-reporting? In the light of that, will he consider giving legal status to the offence of stalking? Secondly, will he ensure that victims of stalking are referred to a victim support scheme?
Lord Bassam of Brighton: My Lords, we think that the figure of 900,000 possible victims is likely to be an accurate estimate. It is based on the British Crime Survey, which is updated approximately every two years and provides us with robust data. It recently revealed that, under Labour, crime is coming down.
As to the noble Lord's final points, the definition that relates to stalking enables us to capture all forms of harassment offences. For that reason, the Act is very effective. It is a good idea to pursue the noble Lord's suggestion of ensuring that victims of stalking, harassment and other anti-social behaviour are referred to victim support schemes.

St Helena: Access
2.38 p.m.
Lord Waddington Lord Waddington asked Her Majesty's Government:
What steps they are taking to facilitate the building of an airport on St Helena.
Baroness Amos: My Lords, a comparative study of the options for air and sea access to St Helena is currently being undertaken. The team undertaking the study visited St Helena in mid-October and we expect its draft report to he produced by the end of this year. The final report will then need to be considered and discussed with the St Helena Government.
Lord Waddington: My Lords, I thank the noble Baroness for her reply; also, I thank the Foreign Secretary for his reply to me at the end of October. Does the noble Baroness agree that, with an airport, St Helena might have a real chance of economic development and of freeing itself from dependency on overseas aid? Does she further agree that the proposals for development put forward by the St Helena Leisure Corporation (SHELCO) for not only an airport on the island but also a five-star hotel and the formation of an airline to serve the island deserve our support? Will the report to which the noble Baroness has referred deal not only with public sector development: plans, but also with plans such as those proposed by SHELCO?
Baroness Amos: My Lords, the Department for International Development has agreed that, subject to the outcome of the comparative study, it will provide funding equal to the least capital cost option: that is, either the cost of replacing RMS "St Helena" or the estimated capital cost of an airport and related infrastructure. We have to await the outcome of the study. We are aware that the St Helena Government have a preference for air access. If, however that happens not to be the least capital cost option, clearly they will need to ensure that there is private sector investment to meet any difference in cost.
We are aware of SHELCO's proposals for an hotel, a golf course and an airport. Officials from the FCO and DfID met representatives from SHELCO earlier this year. When the report is published—indeed, whether it is published—is up to the St Helena Government. Clearly, the report will contain a n umber of options that will have to be considered.
Lord Faulkner of Worcester: My Lords, is my noble friend aware that there has not been a ministerial visit to St Helena since 1699—which perhaps demonstrates how far away and difficult to get to the island is? In welcoming my noble friend's remarks about the publication of the report, will she give an assurance that the islanders of St Helena will be consulted widely? I understand that there is more than one point of view on whether they prefer air or sea access.
Baroness Amos: My Lords, indeed, there has not been a ministerial visit since 1699. Given the length of time it takes to get to St Helena, and to get back again, I am not sure that the Chief Whip would approve of anyone from these Benches going there on a ministerial visit. With regard to consultation, I assure my noble friend that the government of St Helena, councillors, civil society organisations and other stakeholders, including SHELCO, have been widely

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consulted as part of the comparative study process. I am sure that, once the draft report is published, further consultations will take place.
Lord Redesdale: My Lords, is not the need for an airport emphasised by medical emergencies? I believe that, last year, a young girl had to be taken by ship to South Africa, and that the only way in which a ship could be contacted was by sending out a Mayday call. Is that acceptable?
Baroness Amos: My Lords, the comparative study will consider health issues, including emergency medical evacuation from the island. That will feed into the process of deciding which is the best option.
Baroness Young: My Lords, is the noble Baroness aware of how very long this question of an airport has been under consideration? It is a very serious situation for the people of St Helena, who are almost entirely dependent on overseas aid to survive in any way at all. Indeed, the journey by boat is so long that it makes it difficult for anyone to visit the island. Will the noble Baroness ensure that great pressure is put on those concerned to reach a decision on this issue which is of such importance to the people of St Helena?
Baroness Amos: My Lords, consideration was given in the 1980s to the possibility of airport access. It was agreed then that it would be far too difficult and complicated. However, this Government have made the decision to go ahead with the comparative cost study on the basis of developments in air technology. As I said in my Answer, the draft report will be available in, I hope, December of this year. We shall then have consultation on the document; the St Helena Government will decide whether or not they want the report to be published; and decisions can then be taken. This Government have not sat down and done nothing.
Baroness Carnegy of Lour: My Lords, can the noble Baroness give the House the complete picture? Can she tell us, for example, how often ships visit St Helena, whether from this country, South Africa, or wherever? What is the frequency of sea travel to the island? Clearly, neither people nor goods can reach that destination in any other way.
Baroness Amos: My Lords, I believe that RMS "St Helena" sails to the island twice a year. However, I shall check that fact and write to the noble Baroness to ensure that she receives the relevant information. I shall also place a copy of that letter in the Library.
Baroness Rawlings: My Lords, as with the airport, for years we have heard much talk about citizenship, with little action. In December 1999 in your Lordships' House the noble Baroness assured us that British citizenship was promised, as soon as practicable, to the people of the overseas territories like St Helena. Further, in answering a supplementary question of
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mine last month, the noble Baroness said that parliamentary time had been sought for such a Bill. Can the noble Baroness say what progress has been made in that respect?
Baroness Amos: My Lords, I can assure the noble Baroness, Lady Rawlings, that we remain committed to our promise to grant UK citizenship to all our overseas territories. Preparations for an overseas territory Bill granting British citizenship have reached an advanced stage. Her Majesty's Government will make available a slot in the timetable for the business as soon as it is feasible.
Lord Waddington: My Lords, does the noble Baroness agree that one of the most important aspects of the SHELCO report is its imaginative plan for building the airport at a very much lower cost than that originally forecast by DfID? Further, is not what she said about the time that it would take for a Minister to visit the island a conclusive argument for an airport, rather than having more ships visiting the island?
Baroness Amos: My Lords, I hope that I have made clear to the House the exact position of the UK Government. We have made a commitment to the St Helena Government that we shall meet the costs of the least capital cost option, be that sea access or air access. We cannot prejudge the outcome of the comparative study, which is due to be published at the end of the year.

Abnormal Loads: Police Escorts
2.47 p.m.
Lord Hoyle Lord Hoyle asked Her Majesty's Government:
When they are going to reach conclusions on whether it is necessary to involve highly trained police officers and their equipment when transporting abnormal loads.
Lord Bassam of Brighton: My Lords, the day-to-day task of escorting abnormal loads is an operational matter for chief officers of police, but both we and they wish to reduce the police service's involvement in this area— provided, of course, that it can be done in a way which does not endanger or compromise road safety. The Association of Chief Police Officers has recently revised its guidance to police forces on the criteria for escorts of abnormal loads. The alteration reduces the occasions on which a police escort is considered to be necessary. I am glad to say that it has been estimated that it could reduce police involvement in this work by as much as 35 per cent. The Government will, of course, continue to work closely with ACPO to seek further reductions by the introduction of private escorts.
Lord Hoyle: My Lords, does my noble friend recall that I asked a similar Question on the 28th March of this year? On that occasion, he said that the report had been completed, that it was out for discussion and that

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an announcement would shortly be made. We both also agreed that this matter had been outstanding since before 1994. Can my noble friend tell us what we are waiting for in relation to the announcement?
Lord Bassam of Brighton: My Lords, the noble Lord is to be congratulated on his persistence. I think that the noble Lord's persistence has actually been rewarded this afternoon. I am sure that when he reads Hansard he will realise that it is a very significant fact that guidance has been changed—the criteria have been changed—so that the police will be much less involved in this by some 35 per cent, which is a big leap forward. Of course, discussions continue, subject to safety considerations, to see what further progress can be made to introduce private escorts to reduce further the burden on already over-worked and over-burdened police forces.
Baroness Sharples: My Lords, the noble Lord referred to 35 per cent, but can he tell us to what that figure applies?
Lord Bassam of Brighton: My Lords, 1.5 million escort exercises annually.
Lord Mason of Barnsley: My Lords, is my noble friend aware that that is not good enough? First, those of us who travel regularly on the motorways wish to see the transport of abnormal loads switched from daytime to night-time. Secondly, we would hope that the transporters would pay the cost and not the police. Incidentally, how much is it costing the police each year?
Lord Bassam of Brighton: My Lords, it is obviously very difficult to provide precise figures, but I shall endeavour to do my best. We think that it costs somewhere in the region of £7 million a year to police abnormal loads travelling on the motorway and dual carriageway network. I entirely take the point that my noble friend has made. He has had long experience of this. Of course we shall be seeking further moves to reduce the burden on police forces and to encourage the use of private escorts which would, of course, transfer in part some of the costs to those road hauliers involved in abnormal load movements.
Earl Attlee: My Lords, I declare an interest as president of the Heavy Transport Association. The Minister talked of safety. Is it correct that there is no direct radio link between a police car and an abnormal load?
Lord Bassam of Brighton: My Lords, I would be extremely surprised if that were the case.
Lord Davies of Oldham: My Lords, I too declare an interest, as president of the Royal Society for the Prevention of Accidents. I press my noble friend further on this matter of seeking to keep abnormal loads off our busy roads in daytime. Only a month ago a load blocked two lanes of the northbound
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carriageway of the M1 at three o'clock in the afternoon. That is enormously frustrating for all other traffic.
Lord Bassam of Brighton: My Lords, this is a more complex matter than one might at first think. Moving loads during the evening and at night would have the benefit of the roads being less busy, but that is, of course, the time when, traditionally, motorway maintenance has been carried out. Very often it is the case that a whole lane or perhaps even two lanes of a motorway will be taken out. That is precisely the sort of width that abnormal loads, particularly the larger ones, might require. So the police have a very difficult operational choice to make about when such loads should be moved. They also have to negotiate these with the points of reception and departure for those abnormal loads.
Baroness Trumpington: My Lords, is the Minister aware that I used to have a government driver who at Christmas gave me a very nice silver flask neatly inscribed with the words, "To my abnormal load"?
Lord Bassam of Brighton: My Lords, there is just no answer to that.
Lord Mackenzie of Framwellgate: My Lords, it is difficult to follow that. Will the Minister join me in congratulating the Metropolitan Police who this morning arrested many criminals for trying to remove an abnormal load from the Dome?
Viscount Simon: My Lords, in response to the question of the noble Earl, Lord Attlee—which is somewhat bypassing the system—when I escorted an abnormal load earlier this year there was no communication between the police vehicle and the driver of the abnormal load. Not only that, although the police vehicle had on its blue lights, people were trying to pass it, which would be a problem if the load was being followed or escorted by non-police vehicles. Will my noble friend consider the fact that there are problems regarding non-police escorts? For example, how does one overcome the fact that they currently have no powers to contravene traffic regulations or to direct vehicles to avoid abnormal loads?
Lord Bassam of Brighton: My Lords, I thought that I had made it plainly clear earlier that the question of safety is very important in the movement of abnormal loads: safety for the driver, safety for other drivers, and public safety generally. All of those matters bear very careful consideration. No doubt where private escorts are provided there will be very careful negotiations with the local police forces involved and, of course, with those who ultimately are responsible for the abnormal load. We take very great care in addressing this issue and I suspect that it is for that reason that there has been some slow progress towards the

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objective, which I know many of your Lordships equally share, of reducing the burden on the police in moving abnormal loads.
Lord Cope of Berkeley: My Lords, the Minister said that discussions which have been going on a long time, as the noble Lord, Lord Hoyle, pointed out, continue. How much longer will they continue?
Lord Bassam of Brighton: My Lords, I have no doubt that those discussions will continue for a very long time because there will always be a need to keep this very sensitive matter under review.
The Earl of Listowel: My Lords, does not the noble Lord agree that there is an important point to this Question inasmuch as the police must be allowed to concentrate on their most important job, preventing crime? Does not he agree that the police should be encouraged—as we heard last night at the DIVERT trust's annual general meeting—to work with communities and spend their time on that important aspect of their work?
Lord Bassam of Brighton: My Lords, those officers that are involved in moving abnormal loads are, of course, traffic officers whose primary responsibility is to keep the arteries of the nation, as it were, free, accessible and moving. Of course it remains an objective of the police at all times to reduce crime and whatever this Government can do, they will do to ensure that the police can concentrate on their primary core task of reducing crime across the country. We have been very successful in that undertaking over the past two to three years.
Lord McNally: My Lords, will the Minister indicate whether it is the philosophy of the Government to privatise or outsource more police duties?
Lord Bassam of Brighton: My Lords, obviously how police forces run and maintain their business is very much a matter for each chief constable. There may well be operations that the police undertake that can be privatised, to use the noble Lord's expression, and I have no doubt that some back-office work has been externalised in that way, perhaps enhancing police efficiency, and enabling extra resources to be put into front-line policing—something which I know the noble Lord shares as an objective with Her Majesty's Government.
Lord Cope of Berkeley: My Lords, when the Minister told the House just now that discussions on this matter would go on ad infinitum, did he mean to refer to the precise Question that was asked, which is when we shall have a decision about whether private sector bodies can accompany these loads instead of the police? That is the key question.
Lord Bassam of Brighton: My Lords, I think in principle there is little disagreement that the use of
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private escorts is appropriate. No doubt those discussions to resolve issues relating to safety will have to continue. The point I was making generally is that discussions will always continue on this subject because there are always new problems; and no doubt the form and management of such services changes over time.

Balibo, East Timor: Deaths of Journalists
2.57 p.m.
Baroness Walmsley Baroness Walmsley asked Her Majesty's Government:
What steps they are taking to bring to justice the killers of two British journalists, Malcolm Rennie and Brian Peters, as well as two Australian journalists and a New Zealand journalist, at Balibo in East Timor in 1975.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, we have regularly raised with the Indonesian Government the matter of the deaths of the British journalists at Balibo in East Timor in 1975. We welcome the decision by the UN administration in East Timor to reopen the investigation into this case.
Baroness Walmsley: My Lords, I thank the Minister for her Answer. Naturally I welcome the recent United Nations initiatives and wish them well. However, will the Minister accept that it has simply not been good enough for successive British governments to have left the investigation of the murder of two British citizens to the Australian Government for the past 25 years—a government which many recent revelations from many sources show was implicated in this atrocity through the negligence of some of its officials? Is the Minister therefore able to assure the House that Her Majesty's Government will take a more proactive role and leave no stone unturned until the murderers of the two British journalists and many others in East Timor are brought to justice?
Baroness Scotland of Asthal: My Lords, I say straight away that of course I acknowledge the concern that the noble Baroness expresses in relation to this matter and join with her in that. However, successive British governments have been involved in this issue although they have not taken the primary role. There were no plans for a British inquiry because the five journalists killed were all based in Australia and worked for the Australian TV station. For that reason it was the Australian Government which led on this issue. It commissioned the comprehensive investigation by a former solicitor general, Tom Sherman, in 1995 and this remains the bench-mark. I should reassure the House that there was no reason to suppose that that investigation was not carried out vigorously and fully. We were kept informed about it; and it is a matter which we were content to accept.

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It is obviously important that the matter is being considered now. More information may have come to light. We are very keen indeed that the investigations should be full, frank and searching.
Lord Avebury: My Lords, it is clear that documents were available to the Australian foreign ministry which were not disclosed to the Sherman inquiry. How do we know that similar documents are not in the possession of the Foreign Office? Will the Minister give an undertaking that whatever documents the Foreign Office may have will not be withheld because of the 30-year rule but made available to any inquiry undertaken by the authorities in East Timor?
Baroness Scotland of Asthal: My Lords, I can assure your Lordships that all documents which can properly be disclosed will be disclosed in accordance with the normal rules. But no noble Lord should be left in any doubt that Her Majesty's Government are very keen indeed for the perpetrators of these heinous offences to be found and that we have every hope and aspiration that all of those involved in this process have a similar good intent.
Lord Rea: My Lords, since we have a little Question Time available, perhaps I may ask the Minister a slightly peripheral question. Can my noble friend report on the current situation of the forced refugees of East Timorese who are now in West Timor, in particular after the United Nations group which was looking after them was withdrawn when some of its members were killed? Is there any chance of that team returning to West Timor?
Baroness Scotland of Asthal: My Lords, this issue is not only peripheral, it is very wide of the Question.
However, it is right to say that we were appalled by the brutal murder of the UNHCR staff on 6th September. We have consistently pressed the Indonesian Government to comply with the terms of UN Security Resolution 1319, to disarm and disband the militia in West Timor and to arrest those responsible for the murders. We are encouraging the UN Security Council mission. It will visit East Timor, West Timor and Indonesia from 9th to 18th November. It will look at the progress in compliance with Resolution 1319 and at encouraging the Indonesians to bring those responsible for the murders to account. Six suspects are currently in detention.
Although I have answered that question, I hope that it will not be an incitement to any other noble Lord to ask questions which are far wide of the Question on the Order Paper.
Lord Redesdale: My Lords, the Minister used the word "properly". Can the noble Baroness say who will decide on the propriety of disclosure of documents?
Baroness Scotland of Asthal: My Lords, the Foreign Office decides on the propriety.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Burlison will, with the leave of the House, repeat a Statement which is being made in another place on Far East prisoners of war compensation.

Political Parties, Elections and Referendums Bill
3.3 p.m.
Lord Bassam of Brighton: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1,

Schedule 1,

Clause 2,

Schedule 2,

Clauses 3 to 15,

Schedule 3,

Clauses 16 to 31,

Schedule 4,

Clauses 32 to 47,

Schedule 5,

Clauses 48 to 61,

Schedule 6,

Clauses 62 to 69,

Schedule 7,

Clause 70,

Schedule 8,

Clauses 71 to 77,

Schedule 9,

Clauses 78 to 92,

Schedule 10,

Clause 93,

Schedule 11,

Clauses 94 to 107,

Schedule 12,

Clause 108,

Schedule 13,

Clauses 109 to 115,

Schedule 14,

Clause 116,

Schedule 15,

Clauses 117 to 127,

Schedule 16,

Clauses 128 to 134,

Schedule 17,

Clause 135,

Schedule 18,

Clause 136,

Schedule 19,

Clauses 137 to 147,

Schedule 20,

Clauses 148 to 155,

Schedules 21 and 22,

Clauses 156 to 159,

Schedule 23.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

Countryside and Rights of Way Bill
3.4 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Whitty.)
On Question, Motion agreed to.
Clause 11 [Regulations relating to maps]:
Lord Whitty Lord Whitty moved Amendment No. 71:
Clause 11, page 6, line 44, after ("authorities") insert (", local access forums").
The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 87, 94, 135, 189, 253, and 255.
These amendments and new clauses together deliver our commitment expressed in Committee to bring forward new provisions to give a statutory status to local access forums. In response to amendments tabled by the Liberal Democrat Front Bench, I indicated that we would bring forward such amendments. I believe that these amendments meet the objectives sought at that stage.
The amendments will place a duty on access authorities—that is, local highway authorities and national park authorities—to establish local access forums in their area. Forums will need to include a balanced representation of both users of the right of access under Part I and rights of way in general, and of landowners, managers and occupiers of land.
The intention is that in the implementation and management of the right of access and improvement of rights of way the advice of local access forums will be sought and due weight given to that advice. The amendments will require relevant decision-making authorities to have proper regard to forums' views in reaching decisions, for example in relation to draft maps, the imposition of by-laws, proposals for long-term closures of access land as well as on wider access issues contained in new rights of way improvement plans. In providing their views, local access forums will need to take into account relevant guidance issued by the Secretary of State or the National Assembly. The amendments demonstrate the central role which we intend that forums will play in advising on the operation and implementation of the new right of access.
Subsequent amendments deal with how that right will be dealt with. Amendments Nos. 253 and 255 are new clauses to be inserted in Part V of the Bill. They contain substantive provisions about local access forums. They press a duty on highways authorities and national park authorities to establish them. Amendment No. 253 provides for the new clauses on local access forums to come into force two months after Royal Assent. Amendment No. 255 introduces a general definition of local access forum into Part V for the purposes of interpretation.
Amendments 254 and 256 are tabled as amendments to Amendments Nos. 253 and 255. I shall listen to what is said on those amendments to my amendment. It might help the House if I were to indicate that in general terms I am not inclined to accept Amendment No. 254 but I am favourably disposed to Amendment No. 256. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, we are pleased that the Government have placed provisions for local access forums on the face of the Bill. We believed strongly that they were key to making Parts I and II effective. Many other interest groups—landowners, farmers, walkers and those with wildlife interests—are equally pleased that these provisions are now on the face of the Bill and that the Government have made a commitment to fund those forums.
Amendment No. 254 is a probing amendment to test in what circumstances the Government intend to use subsection (8). It would be unfortunate if some areas of the country were not covered by these forums. We wish to examine the criteria used by the Secretary of State when no forum is in place; and the criteria used whereby part of an area which is covered by an access authority has no forum in place. That might apply, for instance, to a large section of MoD land. However, even then it would seem reasonable to have a local access forum which might comment only occasionally as regards that area of land.
The amendment deleting subsection (9) is consequential on deletion of subsection (8). I am glad the Minister sees the sense of Amendment No. 256 which inserts,
"other interests especially relevant to that area".
There could be many such interests, which would vary from area to area. There might be particular wildlife interest groups in many areas, or the British Horse Society might want a representative if horse riders had had de facto access for a number of years. We are pleased that the Government are minded to accept Amendment No. 256.
Baroness Carnegy of Lour: My Lords, in accepting the idea that local access forums should be statutory, the Government must have calculated the extra cost to the taxpayer. At what cost has the amendment been accepted?
The Earl of Caithness: My Lords, I spoke in favour of local access forums in Committee. I thank the Government for coming forward with their proposals.
Baroness Young of Old Scone: My Lords, I endorse Amendment No. 256, which would include,
"other interests especially relevant to that area".
I had some concerns about how the regulations for the appointment of people to local access forums were couched, referring to users and owners and occupiers. It will be very helpful to constructive debate if a wider range of interest groups are involved in local access forums, rather than just two groups that might be forced into polarised positions. I endorse the view that

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conservation interests would help to leaven the debate and would represent the important interests of conservation in the discussions of local access forums.
Baroness Byford: My Lords, I, too, thank the Minister for coming back with a full and fairly long clause and for his other amendments, which we welcome. The Liberal Democrats led in this case, but we were happy to support.
Following upon what the noble Baroness, Lady Young of Old Scone, has just said, it is important that our approach is across the board rather than narrow. At earlier stages of the Bill we voiced our concerns that the owners or managers of land might not be included on the access forum, so I am delighted to see that they will be. In Amendment No. 253, the Government have recognised the needs of land managers, which will vary from area to area, and,
"the desirability of conserving the natural beauty",
of the countryside.
The noble Baroness, Lady Miller of Chilthorne Domer, also referred to areas where there will not be local access forums. In Committee we argued that some areas might not want to adopt that approach to start with but would grow towards it. In the meantime, if there are no local access forums in some areas, how do the Government envisage the relationship continuing? I do not think that I have missed the answer to that point in the amendments. I am grateful to the Minister for coming forward with the amendments, but I should like answers to those important questions.
Lord Renton: My Lords, I am glad that the Government have tabled the amendments, as far as they go. Amendment No. 253 seems to be the operative one. Subsection (6) specifies the points that a local access forum shall have regard to in carrying out its functions. The first is,
"the needs of land management".
That is splendid. The second is,
"the desirability of conserving the natural beauty of the area … including the flora, fauna and geological and physiographical features of the area".
The last one is,
"guidance given from time to time by the Secretary of State … or the National Assembly for Wales".
Those are words of limitation. If local access forums find that giving access by night is causing a problem, will they have a way of overcoming it?
3.15 p.m.
Lord Whitty: My Lords, I am grateful for the support around the House for the amendments, which address the concerns expressed at earlier stages. In response to the noble Baroness, Lady Carnegy of Lour, I gave some indication of the overall costs of the management of access and rights of way that would probably be incurred with or without forums, but the
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specific funding allocation for local access forums will be broadly £1 million a year.
Baroness Carnegy of Lour: My Lords, does that include the extra cost of making the forums statutory, or is there no extra cost? I may be asking an invalid question.
Lord Whitty: My Lords, in a sense the answer is yes. Given that there is to be a requirement to have access forums rather than their being one way of dealing with the management and representation of all interests, I guess that the £1 million represents the additional cost. There will be other costs associated with the process, which I have already referred to.
The noble Lord, Lord Renton, asked about Amendment No. 253. Local access forums—I think that we all agree that that is the appropriate plural—will not have executive power, but they will be able to raise any problems that arise with the access authority and the Countryside Agency. That could include specific problems relating to access by night. However, they would not be the decision-making body on that issue.
On Amendment No. 256, we have left the detailed requirements of membership to regulations, but I accept that we need to ensure that the forums are representative of a cross-section of interests and do not end up being polarised between users and landowners. For them to operate properly, other interests will have to be represented. I appreciate that local interests will be particularly relevant in certain areas and circumstances. To put the matter beyond doubt, we shall not leave it to regulations and will accept the amendment as it stands.
On Amendment No. 254, however, we consider that there will be circumstances in which particular authorities will not need to be under a duty to establish a local access forum. Subsection (8) of Amendment No. 253 allows the Secretary of State to exclude them by direction. A specific decision to exclude such areas will be required, not the other way round. There will not be a presumption that there will be no local access forum until one is set up. We have included that provision because there may be some metropolitan boroughs with no open country and very few recreational rights of way. In those areas, it would be an inappropriate use of resources to require the establishment of a local access forum. It will be for ourselves and the Countryside Agency to listen to the views of those authorities. But there will clearly be some urban authorities where rights of way are minimal and access non-existent. If two or more authorities set up a joint forum, it might be appropriate to exclude the operation of the duty from some highly built-up parts of the area. That is unlikely to apply in many areas, but we would need to exclude them on the basis of a direction.
With that explanation, I hope that the noble Baroness will not pursue Amendment No. 254. I shall accept Amendment No. 256 when we reach it.
On Question, amendment agreed to.
Clause 13 [Occupiers' liability]:
Lord Whitty Lord Whitty moved Amendment No. 72:
Page 8, line 13, after ("owes") insert ("(subject to subsection (6C) below)").
The noble Lord said: My Lords, in moving Amendment No. 72, I wish to speak also to Amendments Nos. 73 and 77, also standing in my name. We start from the principle that walkers principally are responsible for looking after their own safety and that landowners and occupiers should not find themselves bearing liability for the foolish actions of people who exercise the new right of access. On that, I believe there is universal agreement around the House.
That is precisely why we reduced occupiers' liability to the very low level owed to trespassers. And, further than that, that is why we removed liability in respect of all natural hazards. That represented a fairly fundamental shift in the level of occupiers' liability and was intended to reflect precisely the effect of the new rights. Therefore, we have balanced the new rights with a reduction of liability across the board. In some cases, where there are particular dangers or features which may be beyond the landowner's control, we have excluded liability altogether.
Indeed, on that latter front we intend to go further with these amendments by removing liability. Amendment No. 73 has the effect or removing liability in relation to personal injuries suffered by people who climb over or pass through a wall, fence or gate except by the proper use of a gate or stile. That responds to the concern expressed by landowners that problems were bound to arise with people hurting themselves when climbing over man-made features, such as dry stone walls. We do not believe that the courts would be likely to hold landowners liable in such cases. However, we accept that in this litigious age some people may try to bring cases. Therefore, we wish to extend the exclusion from liability to such occurrences.
Amendment No. 73 deals with liability in respect of rivers, streams, ditches or ponds, whether or not they are natural features. That again addresses conservation interests and concerns expressed by landowners that occupiers should not bear responsibility in relation to such features, even when they have been made or changed by man. In particular, we accept that it would be very difficult to tell whether a pond was man-made or natural.
New subsection (6C) retains a minimal liability where an occupier does something which creates a danger on his land with the intention of creating that risk or is reckless as to whether or not such a risk is created. I am sure that noble Lords will agree that this safeguard is sensible and reasonable, especially now that we have widened the list of items excluded from trespassers' liability to include some man-made ones. In this context, I think of cases where a landowner has deliberately done something to put users of the new right at risk.
Government Amendment No. 77 gives further comfort to landowners in that it provides special guidance to the courts in assessing what, if any, duty remains to be owed by occupiers to those who exercise the right of access. The provision requires the court to have regard to the particular importance of not placing an undue burden, whether financial or otherwise, on the occupier. It also requires the courts to take into account the need to maintain the character of the countryside, including features of historic, traditional or archaeological interest.
We want to make clear that we do not wish the countryside to be littered with forests of signs and miles of fences. Therefore, the landowners' responsibility in that respect must have regard to these wider issues and to any code or guidance. The court must also have regard to any code or guidance issued by the countryside bodies; for example, it must take into account that walkers had been warned by the code to inform themselves about hazards.
I believe that the Government have moved substantially to recognise where the issue of liability could become a serious problem. We have reduced the overall liability; we have excluded liability from areas where unintentional danger could be at its height; and we have given that guidance to the courts. Therefore, I believe that we have gone a long way towards recognising the genuine concerns of landowners in this area.
I shall come to the other amendments in the group shortly. However, I do not believe that we should go further, and I certainly do not believe that we should accept, for example, Amendment No. 74, which effectively would exclude all liability on access land. We have constructed a balance by reducing general liability and have gone further in the landowners' direction. I do not intend to go further than we have done with these amendments. I beg to move.
Viscount Bledisloe: My Lords, if the government amendments are accepted—and, at least in a modest way, we are grateful to the Government for bringing them forward—a two-pronged situation would arise. First, in certain respects, the Bill will wholly exclude a duty in respect of certain natural features on the land and in respect of certain waters and gates, etc, when they are being used properly.
Secondly, by reason of Amendment No. 77, in other cases where the duty is not wholly excluded, the court will have to perform a balancing act to decide whether or not there should be a duty. In performing that balancing act, the court would take into account the factors set out in Amendment No. 77; namely, whether the existence of a duty would place an undue burden on the occupier, and the importance of maintaining historic features as set out in the code.
I fully acknowledge that these amendments improve the Bill. As I said, we are grateful for that. However, they still leave considerable problems. It must be remembered that it is more important to an occupier that the prospect of claims is eliminated rather than an offence is created, in pursuit of which he will probably

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succeed at the end of an expensive trial. Where the duty is wholly excluded, there can be no claim. But where, as in the second part of Amendment No. 77, the question of whether or not there is a duty depends on the view which an individual judge takes of the balancing between those factors and, presumably, the interest of the plaintiff in receiving compensation, then the occupier is faced with a trial.
No one can know what view the judge will take until all the circumstances have been investigated. Therefore, the occupier will be faced with the prospect of a trial, probably at the suit of a plaintiff who is not good for the costs even if the defence succeeds. Inevitably the occupier will be under strong pressure to pay something in order to get rid of the claim rather than to incur costs which he will probably not get back. In addition, of course, he will face the risk of losing. For that reason, the aim of the Bill should be to exclude a duty. If a discretionary duty remains, that still imposes a substantial burden on the occupier.
I venture to suggest that there are two unsatisfactory features in Amendment No. 73. First, the amendment only exempts liability for a gate except by proper use of a gate. Let us look at the scenario where a gate is on access land but is never used by the occupier. It is of no use to him because it is not situated on a route that he now needs to take. Therefore, the occupier does not need to repair it. A man exercising his access right opens the unrepaired gate which then falls over and injures him. In one sense, the man is using the gate properly, but the occupier has no need to use it. I ask the noble Lord to explain why the occupier should have to repair that gate—a gate which he does not use and which he will put into repair only for the benefit of people who exercise access rights.
The second defective part of Amendment No. 73 relates to features other than gates and waters. The amendment exempts liability only for natural features, which are closely and narrowly defined, and are such items as trees and shrubs. I suggest that the proper exclusion should apply to anything which is on the land, at least if it is there in the ordinary course of the use of the land—a shed that the farmer has put up for his use. I am prepared to concede that there should be no exclusion where there is something very odd on the land such as a rocket site or something like that. But liability should be excluded in relation to the ordinary features that one would expect to see on land of this kind, whether or not they are within the definition of "natural" contained in the Bill.
My Amendment No. 75A seeks to enlarge the list of matters so as to achieve that result. It exempts liability for all houses, buildings, erections and so on which were constructed o r retained on the land for the purposes of any natural use of the land—farming or whatever it may be.
The main difference—and this is something which only transpired in conversation with the Minister, for which I am grateful—is that I have included there, as one sees, houses and buildings and so on. The Minister said in Committee that there is no need to exclude buildings because they are already excluded. On
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investigation, that refers to the fact that by virtue of Schedule 1(2), land with buildings on it is excluded from being access land, but that is a wholly different point.
Let us take the case where, in the middle of some access land, there is an old and attractive barn or byre which is not much used and which is, therefore, out of repair but which it would be a sad pity to see pulled down. Some young people exercising their access rights may go into the barn and get hurt. They sue, admitting they were trespassers but claiming that there is a duty, as there is, under Section 1 of the Occupiers' Liability Act 1984.
If buildings are included in Section 13 exclusions, then the simple answer is that there is no duty. But if they are not so excluded, then there is an arguable case which has, as I say, to go to trial and, in fact, would probably be settled.
The Minister suggested that that is no different from the situation as it is at present. If somebody gets into that barn now, he has the rights conferred on a trespasser. But with respect to the Minister, his point is not right. First, there is the practical point that, without the access rights, it is very much less likely that anybody would be there. But, secondly, there is the legal point that under Section 1(3)(b) of the Occupiers' Liability Act 1984, in deciding whether or not there is a duty, the court must have regard, among other things, to the likelihood of somebody being there.
Before access was conferred, there was very little likelihood of anybody being in this barn in the middle of this moorland. But now access rights are given, that likelihood has greatly increased. Therefore, the liability of the occupier has, both in practice and in law, been increased.
In my respectful submission, it is vital that that liability is excluded. It is extremely important that we stick to the wording of the Bill which exempts the owner of access land from all relevant claims by someone exercising the access rights, whether or not the incident occurs on access land or in a building immediately adjoining it. I stress that the real worry is that of a claim being brought, and not the ultimate outcome of a claim.
I venture to suggest to the Minister that if he does not accept that point, he is pressurising the occupiers to pull down elderly buildings for which they have no great use and certainly cannot afford to repair, which would surely be a sorry pity. Therefore, I hope that in spite of the somewhat intransigent remarks of the Minister that he was not prepared to go any further, he will, on hearing my explanation, see the force of the point and be minded to include buildings and other ordinary features of the landscape which have been put there in the course of the normal development and use of that land and which it would be a pity to see removed.
3.30 p.m.
Earl Peel: My Lords, I start by thanking the Minister for having at least come some way towards dealing with this very thorny question. In that regard, I declare an

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interest in that the land that I own will be subject to access and, therefore, liability will have a direct effect on me personally.
I was a little disappointed that the Minister has already rejected my amendment before even listening to the arguments that I am going to advance. But having said that, I hope that he will listen carefully now because, like the noble Viscount, Lord Bledisloe, I have something to say on this subject.
I was extremely interested in what the noble Viscount, Lord Bledisloe, said and particularly his legal interpretation of Amendment No. 77.
In speaking to Amendments Nos. 74 and 76, perhaps I may make the following comments. Clause 13 currently exempts occupier from liability for the safety of walkers on access land in relation to "natural features of the landscape". Government Amendments Nos. 72 and 73 extend that exemption to include certain man-made features such as stiles and gates. But as the noble Viscount, Lord Bledisloe, said, there is the caveat that that applies only in circumstances where those are not being used properly, whatever that means. The difficulty is that there will be quite a number of gates and stiles which the owner will have put up, perhaps for his own use, which are not suitable for use by people exercising their rights of access. Is it really, therefore, right and proper that they should be, under the law, made to put those into a proper state to allow people to use them while exercising their access rights? That really is carrying the question of liability far too far.
Furthermore, as yet, government amendments fail to exclude liability in relation to other hazards likely to occur on access land.
As a starting point in examining how those provisions need to be improved, it must be said that the law of occupiers' liability is complicated. The provisions in the Bill, unlike those in the Occupiers' Liability Acts, do not result from careful consideration of the issues by the Law Commission, but from the very real need to resolve the liability problems inherent in the Government's original proposals, as highlighted by the Country Landowners' Association, of which many of your Lordships will be aware.
In trying to sort out the problems associated with the liability regime for access land, the Government have created an entirely new category of occupiers' liability—that for non-natural features, a point mentioned by the noble Viscount, Lord Bledisloe. That brings in its train all sorts of problems, as I shall try to explain.
The precedent before this Bill, both in statute and in case law, has been that liability is not imposed on the occupier for the state of the land where access is of right. As an example, users of highways are specifically excluded from protection under the Occupiers' Liability Act 1984. Such an approach does not remove the occupier from liability for hazards recklessly created, or for negligent activities. What has been recognised, however, is that it is inequitable to place liability upon an occupier when that occupier cannot control access. That is a very important point.
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Indeed, an occupier can owe a duty to a trespasser under the Occupiers' Liability Act 1984. However, the occupier can exclude the trespasser, fence his land or ask the trespasser to leave. In those ways, the owner can require the trespasser to take himself away from a hazard on the land, so reducing the risk of an accident. None of those things can happen where access is as of right, as under the provisions in this Bill. In other words, the owner cannot require someone to leave the land in the interests of his own safety.
Looking at Clause 13, as drafted, there appears to be no logical justification for the division between natural and non-natural features. Many non-natural features are immovable, fixed features, that are longstanding and form part of the landscape. Indeed, features such as dry stone walls often give the landscape the very character which is so valued by the public.
As an illustration of that point, mines—other than mines for coal, ironstone, shale or clay—dating from before 1872 are exempt from the requirements of the Mines and Quarries Act 1954 to have an efficient enclosure, barrier, plug or other device to prevent any person accidentally falling into the mine or entering its outlet. That means that the obligations under the Act do not apply to the several thousand lead and tin mines which were abandoned in moorland areas before that date. Such old mines—some may be medieval or even Roman—form part of the landscape and have not been used in generations for any form of profit-making activity. However, under the Bill, liability could attach to the occupier for an accident in such a mine on access land.
In case there should be any doubt about the extent of these mine workings in upland areas, perhaps I may cite the example of one recent estate audit in the Pennines by the surveying firm Wardell Armstrong. That identified 136 lead mine entrances. During the survey, several previously unrecorded entrances were also discovered. If, as I suspect, those lead mines were abandoned before 1872, the owner is under no duty at the moment to fence them. I believe that the experience of this one estate could be widely replicated, particularly in the North East and South West of England and in Wales.
Presumably, the justification for imposing upon occupiers the new liability for non-natural features is that it is a prudent way to ensure public safety. However, the argument fails on two grounds. First, why should occupiers, who have not invited parties on to their land, and who have no control over the entrants, bear liability for their safety, particularly where no compensation is payable under the Bill? Secondly, as we know, open country comprises about 4 million acres of land. Such land will be occupied by a wide variety of owners, each with differing opinions on the steps necessary to fulfil any obligation on their particular piece of land, and differing resources available to meet any such obligations. Some occupiers may fence the hazards; some will only insure; many will simply not have the resources to take either step. How can that approach be seen as a suitable way to ensure public safety? I believe that, overall, the

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better approach is to follow legal precedent and remove liability from occupiers for all features of the landscape as my amendments propose.
As a final point, there is another problem with the present clause, which I am bound to say is not covered by my amendments but which I believe should be highlighted. Under the provisions of the Mines and Quarries Act, a quarry, whether working or otherwise, can be defined as a statutory nuisance under the Environmental Protection Act 1990 if, first, it does not have a properly maintained barrier to prevent persons falling into it, and, secondly, by reason of its accessibility from a highway or place of public resort, it constitutes a danger to the public. There are many thousands of quarries on land which will become subject to the new right of access. Many of those will not have been fenced to date because they are far away from the nearest highway. However, as soon as the right of access comes into force, they will automatically become potential statutory nuisances because the public will have a statutory right to walk around them.
My amendments would exempt occupiers from liability in relation to these quarries under the Occupiers' Liability Act. However, they would not prevent a local authority taking the view that the quarry amounted to a statutory nuisance. The owner could be faced with enforcement action; for example, he could be required to fence the quarry. I urge the Government to consider this potential problem and to table their own amendment at Third Reading to exclude that possibility.
Overall, the occupiers' liability regime set out in the Bill is deficient. New liabilities will fall on owners unless the Bill is amended. Owners will be put to considerable cost to minimise the risk of accidents and of claims from walkers. That costly action could include undertaking audits of hazards; undertaking risk assessments in relation to those found; fencing hazards; erecting warning signs and taking out additional insurance. In addition, an owner is not entitled to fence common land without the express permission of the Secretary of State. As regards quarries, as I have mentioned, enforcement action by local authorities is a real risk. It is surely wrong for the Bill to expose owners to those risks and expense; for example, in relation to thousands of mines and quarries spread across millions of acres of access land.
I believe that this section of the Bill must be amended in order to allow for a fair and equitable arrangement to be reached which would not impose considerable costs on owners who are being subjected to new access provisions which they did not initiate. The Government brought in this legislation. I believe that it is only right and proper that the Government should remove liability on occupiers for any expense on liability which is caused by the access provisions in the Bill. I beg to move.
3.45 p.m.
Lord Greaves: My Lords, I shall speak to Amendment No. 72 moved by the Minister and the other amendments in the grouping. I shall speak also to Amendments No. 73A and 73D, which are amendments to the main amendment. My noble friend Lady Miller of Chilthorne Domer will speak to Amendments Nos. 73B and 73C.
I welcome the fact that, to a degree, the Government have moved on the question of occupiers' liability in relation to Part I of the Bill. That is welcome. However, along with the noble Viscount, Lord Bledisloe, and the noble Earl, Lord Peel, I do not think that the Government have moved sufficiently far. I shall speak briefly to the amendments tabled by the noble Earl and the noble Viscount. If I start to speak gibberish, it is because I have spent seven and a half hours trying to drive down the M1. I then had to fight my way into the building through a demonstration and am feeling somewhat shell-shocked.
I substantially agreed with the comments made by the noble Viscount, Lord Bledisloe, on his amendment. However, I have difficulty in understanding the wording, and at this stage could not support it. I do not understand what it means, but perhaps that can be discussed. In Committee, I stated that in general terms I supported the amendment moved by the noble Earl, Lord Peel. Since then, nothing has been said by the Government to change my view. Other things being equal, I am still disposed to support that amendment. Indeed, I agree with everything said by the noble Earl. I shall not repeat that, but merely state the position. It seems to me that there is probably majority support in this House for the Government to move further on this matter. I hope that they will reflect on that and come back to it at Third Reading.
Amendment No. 73D refers specifically to activities which in general terms I shall refer to as "climbing". In Committee and since, those of us who are interested in climbing welcomed the fact that climbing and ancillary activities are included within the scope of Clause 2. Nevertheless, there has been increasing concern that the Government have not yet understood the relationship between people engaging in climbing, abseiling and so on, and the owners of the land on which they climb.
I had considerable discussions in relation to these amendments last weekend with senior people in the British Mountaineering Council—the national representative body for climbers in this country—and my amendments were tabled with its full support. They also meet with the support of the Country Landowners' Association. At an earlier stage a joint letter was sent by the BMC and the CLA effectively asking for an amendment on the lines of Amendment No. 73A.
Rock climbing is an inherently dangerous activity that people undertake voluntarily and deliberately in order to pit their skills and abilities of various kinds—athletic, technical and psychological—against the natural environment in which they find themselves.

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That applies whether we are talking about rock climbing on a short gritstone outcrop in Derbyshire or mountaineering in high mountains.
There is a general principle among the climbing fraternity that the risk of climbing belongs to the climbers themselves; that it should not be the responsibility of owners and occupiers unless they behave in a reckless way, and the government amendment now covers that. Clearly, if someone pulls down ropes while someone else is climbing, they are committing a criminal offence because people's lives are being put at risk. But in general the principle is that the risk in climbing should in no circumstances be the responsibility of the occupiers of the land. Indeed, if it was thought to be their responsibility, climbers would not have access to a lot of crags and cliffs which they presently have access to by voluntary agreement. It is the view of the climbing community that that principle should be embodied in the Bill.
There are growing problems of what I call "irresponsible" litigation, encouraged by lawyers offering to take up cases on the basis that they are paid only if they win. It is a tendency spreading from the United States of America and one which climbers generally want stamped upon. It would therefore be helpful if climbing as an activity, or the crags upon which climbers climb, were exempted from any liability under the Bill.
Another danger is that if landowners and occupiers believe that they have a liability, they may remove some of the features put in place to enable climbing to take place; for instance, posts at the top of crags for people to tie themselves to for abseiling and so forth. Owners may believe that, if they have given express consent to the placing of apparatus or even tacit consent because they are aware that the gear is there, if there is an accident resulting from the failure of that material they may be held responsible.
So these amendments contain three approaches. All three together would be extremely beneficial, but any one on its own would be valuable. First, Amendment No. 73A seeks to apply to rock features the principles set out in the government amendment in relation to water features. Amendment No. 72 says,
"any river, stream, ditch or pond whether or not a natural feature".
Amendment No. 73A asks for the same principle to be applied to rock features. Indeed, many crags in this country can be walked upon. Some have obviously been quarried in the past but some are absolutely natural. And it is difficult to tell the difference between the two. At the extremes one can say "Yes, that has definitely been quarried" or "That looks as though it never has been". I would love to take noble Lords along Stanage Edge in Derbyshire, which is the biggest of the gritstone edges and is used by over 1,000 rock climbers. Some of it has been quarried for millstone, some for local building materials and some is completely natural. Not including manmade rock features in the Bill will produce a can of worms. It is
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a simple amendment and the one which the climbing community would most like the Government to accept.
Amendment No. 73D applies to climbing as an activity. It simply says that if people are on the land climbing, any accidents that occur as a result are not the occupier's responsibility. That is the position that climbers want and it would be a simple matter to write it into this Bill in relation to access land. The second part of Amendment No. 73D relates to climbing posts and other climbing apparatus. Noble Lords will be astonished at some of the devices climbers use basically to make the crags safer and climbing possible. But many of those devices over a period of time become unsafe. There is a general acceptance within the climbing world that if one uses bolts which have been drilled into a crag in the past—that happens in limestone areas—or an old piton (what climbers call pegs) that has been banged into a crack in the past, or a post at the top of the crag which was put there for people to belay on, to tie themselves to or abseil from, one does it at one's own risk. It is our responsibility to check every time we use it that it is in a satisfactory condition for use.
The danger is that if occupiers of land give consent to the placing of apparatus, or even tacit consent by not removing it, and it turns out to be defective and somebody is hurt or even killed because they used that defective apparatus, unless the liability is specifically taken away from the occupier and placed squarely upon the climber, occupiers will remove such apparatus from the climbs. That will make climbing impossible and thereby undermine the aims of this Act.
Amendment No. 77 contains wording which is causing concern. It says,
"where the danger concerned is due to anything done by the occupier … with the intention of creating that risk".
The worry is that that wording could be used against an occupier if he did things in, on or around a piece of rock which in itself made climbing possible. If it is not possible to climb, there is no risk. But, for example, if a path is dug at the top of a crag and access for climbers is made possible, there is a danger that the wording of the amendment could imply that, not only is the occupier liable if there is an accident, but that he actually created the conditions for the accident in digging the path. I am not sure that that is the most serious point being put forward but it is the worry.
I ask the Government to look seriously at these amendments. They relate to a specific activity which is undertaken by perhaps hundreds of thousands of people in this country. It would be a shame if the rights applying to climbers given under Clause 2 of this Bill were not able to he applied properly because of the fears of landowners over liability. It would be an even greater shame if, because of that, there was a spate of litigation or two or three cases which set litigation in train. That in turn may create a climate of hostility and prejudice between occupiers and climbers. At the moment the climate in many areas is one of co-operation and friendship.
4 p.m.
Baroness Mallalieu: My Lords, I welcome the Minister's amendments and recognise how far the Government have moved on this topic. However, notwithstanding the robust way in which he introduced his amendment, will the Minister reflect on whether the balance is right? It seems that in Amendment No. 73 the Government have accepted that occupiers' liability should be removed from some non-natural features. Those set out appear to be either boundary or perimeter features.
We would all accept that a landowner should be liable where he creates the problem, but the noble Earl, Lord Peel, pointed to a real difficulty. Indeed, some real problems would remain if the Government's amendment were accepted. Mention has been made of some non-natural features which are likely to cause problems, in particular the disused quarries, the mineshafts, of which there are a great many, and, as regards the amendment tabled by the noble Viscount, Lord Bledisloe, buildings such as old barns. All those features are likely to prove a magnet for children and the Government should have that uppermost in mind.
At present, there is no duty on landowners to fence mine entrances if they were abandoned before 1872, as many were. The Bill, if it becomes an Act in this form, is likely to impose a duty on those landowners to fence, or otherwise fill in, what would seem to be an enormous number of possible hazards. Under the Bill as it stands, the costs would be borne by the landowners. It cannot be right to leave such features, which were not created by landowners and which are not being used by them for the purposes of managing their land, to become a serious problem and expense for them. Even if the Government believe that the amendment tabled by the noble Earl, Lord Peel, goes too far, surely, there are ways in which such clear hazards could be exempted from occupiers' liability. I hope that the Minister will not close his mind to what is said in the debate.
Baroness Carnegy of Lour: My Lords, as usual, the noble Baroness, Lady Mallalieu, briefly and clearly made several important and cogent points. The noble Lord, Lord Greaves, made a long and detailed speech, although I should have thought that paragraph (c) of Amendment No. 73D, proposed by the noble Lord, was unnecessary because rock, snow and ice are natural features. I would not have thought that climbing over them was different from climbing over a wall or a gate. I may be wrong and the Minister will probably comment on it.
Amendment No. 73 makes no mention of hedges. Are thorn hedges, many of which have been planted and through which people may push and be injured, natural features if they have been planted comparatively recently? The Minister may also wish to comment on that.
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Furthermore, what about boggy areas which have been created by occupiers in response to government grants for the creation of wetlands? A great deal of such work has been done recently. Those points need to be taken into account.
Lord Roberts of Conwy: My Lords, perhaps I may add one or two points for the Minister's consideration. What is the landowner's position when he has an interest in a construction which does not belong to him? I am thinking in particular of electricity supply lines and water leaks, which occur in considerable numbers in access areas, particularly mountains. Although it is not immediately obvious that they pose a hazard, accidents can occur. Storms can bring down electricity supply lines and people can come into contact with them and suffer as a result. The same applies to leaks which during the day are obvious and can be avoided, but problems may occur as a result of night access. I am concerned about the occupiers' liability when they may not own the construction but when a rental may be payable to them.
The Earl of Caithness: My Lords, I am grateful to the Government for edging towards a more equitable situation than that which we discussed in Committee. The Minister spoke reassuringly about constructing a balance. Having listened to today's debate from all around the House—contributions coming from the noble Lord, Lord Greaves, the noble Baroness, Lady Mallalieu, and my noble friend Lord Peel—it appears that an unsatisfactory balance has been achieved.
However, it would be wrong for us to believe that the Minister was right in saying that we should be achieving a balance. People are being given the right to roam often against the wishes of owners and occupiers. Correctly apportioning liability in that respect is not a question of balance but of fairness. That is totally different. It is not a question of what is right for the person gaining access but of whether that is fairly balanced as against the landowner.
The landowner will undoubtedly be prejudiced by the Bill. As it stands, he will be faced with the dilemma of incurring additional costs in order to fence off old mine shafts, pull down buildings and reorganise his land in order to minimise the liability to which he might be exposed. The Minister ought to take the proposal away again because I do not believe that the owners or occupiers should be faced with additional liabilities as a result of the provisions of the Bill.
I want to ask the Minister a particular question. What advice has he received from the Countryside Agency on this issue?
Baroness Miller of Chilthorne Domer: My Lords, we on these Benches welcome the Government's Amendment No. 73 and believe that it has helped the situation. However, what will be the effect if, as we discussed on the first day of the Report stage, the 20-metre curtilage around a house is reintroduced? Is the proposal contained in the amendment of the noble Viscount, Lord Bledisloe, necessary? If we were also to create a curtilage around buildings, would liability

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issues arise because no one should be around the building? Unlike some other noble Lords, I believe that we are nearly there.
I should like to speak to Amendments Nos. 73B and 73C. While they may appear to raise small points, at the moment Amendment No. 73 makes provision only for people who pass over or through the items listed. However, they may pass by a fence, perhaps carelessly, and have a nasty accident. Further, small people may pass under items. Although this may appear to be a matter of semantics, if one argues liability in court the fact that some of these words are excluded is important. We believe that it is much simpler to refer to any injury from these items.
As to Amendment No. 73C, the list of items from which people may suffer injury when crossing a boundary excludes, for example, bridges or stepping stones over water. In the areas with which the Bill is concerned water will form a good number of boundaries. Cattle grids are also common items on which it is easy to slip and break an ankle. We believe that there is good reason to include our wording in these amendments.
Lord Monro of Langholm: My Lords, before the noble Baroness sits down, will she clarify her party's view on whether quarries and mine shafts should be fenced?
Baroness Miller of Chilthorne Domer: My Lords, I agree with the observations of my noble friend Lord Greaves about rock features, to which I need not refer again. As to mine shafts, the noble Earl, Lord Peel, raised some interesting points. I shall listen carefully to the Minister's reply and give the matter further thought.
4.15 p.m.
Baroness Byford: My Lords, I rise to support the amendments in the name of my noble friend Lord Peel. I thank the Government for having listened to the arguments in Committee. I am sure that the Minister is reeling from the suggestion that the Government should consider lifting all liability with regard to natural features. My noble friend quite rightly highlighted the important question of mines, which was well supported by the noble Baroness, Lady Mallalieu. Landowners will be put to great extra cost if they must deal with the many mines around the country.
My noble friend Lord Caithness referred to one important issue which runs throughout the Bill: whereas the Bill gives people a right of access—which is welcome enough—it also places an extra burden, in this case a liability, on those whose land is open to access. We have encouraged the Government to move so far, but we hope that the debates around the House will encourage them to consider the valid points which have been made by noble Lords on all sides of the House.
Lord Whitty: My Lords, we have had a wide-ranging debate, virtually none of which has convinced me that
1384
I should change my initial opinion. I deal first with one or two specific items before turning to more general matters. Slightly aside from the remainder of the amendments, those spoken to by the noble Lord, Lord Greaves, deal with rock climbing and mountaineering on quarry faces or other man-made rock faces. I understand the problem that he attempts to address. Clearly, mountaineers do not want any increase in liability to give rise to hostility from landowners or to encourage them to fence off places which would otherwise be available for use. I also understand the purpose of Amendment No. 73D which seeks to exclude all occupier's liability, apart from reckless and intentional acts, in relation to injuries suffered in undertaking rock climbing, snow and ice climbing and so on. It would also remove liability for injuries arising from posts, anchors or other equipment fixed near to rock faces.
However, I do not believe that these amendments are necessary in view of the provisions of the Bill and the Occupiers' Liability Act 1984. That Act already provides that no duty of any kind is owed to any person in respect of risks willingly accepted. Clearly, that would apply to rock climbers, abseilers and snow and ice climbers in the kind of situation to which the noble Lord referred. They are already excluded in relation to natural features, but they would also be excluded from rock faces in this regard. Therefore, I believe that their anxieties in this respect are misplaced. Likewise, landowners' anxieties are misplaced in relation to those who undertake such activities.
In any case, I am not prepared to sanction the blanket removal of liability in respect of all disused quarries or other rock faces created by man. For example, if there was a particularly dangerous disused quarry close to where people lived, it might be reasonable to expect at least a warning notice and, in some cases, fencing. We are not dealing here solely with rock climbers who knowingly and intentionally put themselves at risk; we may also be dealing with children or other walkers to whom there is some liability in respect of quarries. I shall return to other aspects of mines and quarries in a moment.
Although I understand the anxieties of the rock climbing community in this respect, I believe that they are already covered. To do what the noble Lord, Lord Greaves, suggests and remove the liability will put others at risk when there is no particular reason to remove what is, after all, a pretty minimal liability.
Perhaps I may address the central issue in this group of amendments. The noble Earl, Lord Caithness, said that this is not a matter of balance but fairness. I believe that we have been very fair to landowners. The general message is that we have reduced the liability towards people who are legally on their land to a level which is lower than that owed by other property owners to people who are illegally on their land; and, in respect of particularly hazardous or difficult areas, we have totally removed the liability. The noble Earl, Lord Peel, is wrong to say that that breaks all precedent. The noble Earl's proposal goes in the opposite direction. The precedent is the liability to

1385
trespassers which applies to all other property owners throughout the land. We are making some exclusions from that precedent for the benefit of landowners of access land. Anything less than that is a matter of serious unfairness not only to potential users of access land but to every other property owner who has greater liability than the owners of access land in this respect.
Baroness Byford: My Lords, this Bill gives new rights of access. At the moment, people do not have the right to walk on other people's land. Therefore, surely the liability cannot be viewed in the same way—unless I am mistaken.
Lord Whitty: My Lords, the liability of access land owners to someone who is legally on their land as a result of this Bill is less than that which other property owners have to people who are illegally on their land. That is the disparity to which I refer. We have already balanced the increase in the right by reducing the liability across the board. Further, in particularly difficult cases we have agreed—in some respects slightly against my better judgment, although we must try to reach a degree of understanding of landowners' concerns in this regard—to exclude that liability altogether. Therefore, we have made at least two moves away from the general liability which applies, in the case of every other property owner, not to individuals who are legally on other people's property but to those who are illegally on other people's property.
Baroness Carnegy of Lour: My Lords, I thank the noble Lord for giving way. Have the Government checked that argument against the Human Rights Act?
Lord Whitty: My Lords, the issue in relation to the Human Rights Act is again a question of balance. The Human Rights Act will have to take into account any modifications to the law which have been made by restricting the right of ownership in this respect. We have done so by reducing the liability in that regard and making other provisions which protect the interests of landowners in the way in which the right of access will operate. The Human Rights Act is itself concerned with balance.
The other precedent to which the noble Earl, Lord Peel, referred, which is basically the question of highways, is a very misplaced one. I know a thing or two about highways. In general, highways are maintained by the highways authorities who are aware of defects and can address them. The liability of the occupier of a highway to highway users is not uniformly low, as the noble Earl suggests. The occupier is liable not only for the effects or non-effects of his own activities in relation to the state of the highway, but also for the state of overhanging trees, vegetation, the condition of gates, stiles and adjacent fences when we are dealing with pathways and bridleways and so on. Therefore, there is a substantial liability on he occupiers of highways. In the Bill we have virtually excluded all that. We have excluded
1386
liability for natural features, which includes all these overhanging features and for people climbing over gates and fences. So the liability of occupiers of access lands will frequently be substantially less than the liability that occupiers of highways owe to the users of highways.
In general, I feel that the Government have moved substantially to balance out the increased rights which users will have against the rights of landowners to make better use of their property with these restrictions in liability. With the additional amendments in the group we have moved the matter further.
I am not persuaded by the noble Viscount, Lord Bledisloe, that we should move yet further and take into account not only the possibility of a claim, but the likelihood of any claim and the removal of any residual liability. We believe that occupiers should retain a minimal liability, particularly for reckless and intentional acts and that that liability should be owed to trespassers.
The noble Viscount's other point related to buildings, a subject on which, as he says, he and I have spoken. I still cannot accept his basic argument that liability should be excluded in respect of buildings which are not even on access land because the increase of access means that it is more of a temptation to children. The noble Baroness, Lady Mallalieu, in part made the same point in relation to other features. We are talking about buildings which are not on access land. The status of those buildings has not changed. If we were to accept the amendment of the noble Viscount, we would be removing liability even in relation to inherently dangerous structures close to areas where children live, on commons or in urban areas. That cannot be right. We are not talking here about full liability, we are talking about the minimal duty owed to trespassers.
The noble Lord, Lord Roberts, asked whether the landlord would be responsible for something which affected his land which he did not own or operate. I think the answer to the noble Lord is that if he does not own or operate the feature then he would not be liable, but the person who did own or operate it could be liable if it were on access land or indeed any other land. I do not think that an access land landowner would be responsible in those circumstances.
A number of noble Lords referred to mines and quarries. There is an existing duty to fence most disused mines. There is some increased duty in relation to tin mines. We would expect the countryside bodies to provide information about the existence of mines and quarries. We would expect the access authorities, rather than the landowners, to be able to erect notices warning of such dangers. If necessary, access to the areas covered by mines and quarries could be subject to restrictions on grounds of safety or completely excluded by application to the countryside bodies. We also envisage that funding would be provided in appropriate circumstances for the access authorities to help with the provision of signing and fencing. Having said all that, both in terms of existing Acts and of the

1387
provisions in the Bill, it would be wrong to remove liability from the landowner altogether in relation to mines and quarries.
Several points were raised in relation to gates, walls and fences. Amendment No. 73B, spoken to by the noble Baroness, Lady Miller, would widen the exclusion from liability in relation to walls and fences. We need to be careful about such a proposal. In many circumstances it might operate reasonably, but potentially it could mean that an occupier would bear no responsibility for a wall which collapsed on people, even if they were not touching it but merely standing by it, although the owner knew it was dangerous. I am sure that that is not the intention of the amendment, but it could well be its effect.
Amendment No. 73C would exclude liability in relation to stiles and other access points in addition to gates. However, again there is a problem with that in that it would mean the occupier would effectively bear no responsibility for, say, a dangerous stile or a dangerous footbridge, even where it constituted the most popular means of access to the access land. I do not think we should go down that road. A minimal liability is still owed in that respect.
The noble Earl, Lord Caithness, asked about advice from the Countryside Agency. We have discussed liability issues with the Countryside Agency on a number of occasions. Its view is that some restriction of liability should operate. But we are talking about the wider balance in this respect. Our concern is that that balance is best achieved by what we have in the Bill at present as further extended in favour of the landowners by the amendments to which the Government have referred.
The noble Baroness, Lady Carnegy, asked whether a number of features are actually natural. Hedges are a natural feature. As a result of another amendment hedges are designated as a natural feature. The noble Baroness also asked about bogs and wetlands. If they are natural features then they again have no liability. It is likely that all such features would be seen as natural, even though there may have been a few minor changes made to them as a result of man's activities.
I have tried to deal with most of the specific points that were raised. I think I am correct in saying that no one spoke to Amendment No. 78, standing in the name of the noble Baroness, Lady Hamwee. Therefore, I propose not to refer to it. The consequences of that amendment would move in the opposite direction from that which most noble Lords are urging. I, too, am maintaining a degree of balance in the debate. Had the amendment been spoken to, I should have demonstrated that at this point. Nevertheless, I think I have made clear my overall position. I believe that the balance we have struck in the Bill is the right balance. A number of the features which we have reflected in our amendments in the group would tighten up the balance. In this context, they all move in favour of the landowner and make it a clearer and more coherent approach. I have pointed out that, whatever the motivation behind some of the amendments, their
1388
effect would be difficult to implement and could be damaging to the overall position. I hope that none of the other amendments will be pursued. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker (Baroness Lockwood): My Lords, in calling Amendment No. 73, I have to point out that if it is agreed to, I cannot call Amendment No. 74 owing to pre-emption.
Lord Whitty Lord Whitty moved Amendment No. 73:
Clause 13, page 8, line 14, leave out from first ("of") to end of line 15 and insert—

("(a) a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or

(b) a risk of that person suffering injury when passing over or through any wall, fence or gate, except by proper use of the gate or of a stile.").

The noble Lord said: My Lords, I beg to move.
[Amendments Nos. 73A to 73D, as amendments to Amendment No. 73, not moved.]
4.31 p.m.
On Question, Whether the said amendment (No. 73) shall be agreed to?
Their Lordships divided: Contents, 159; Not-Contents, 113.

Division No. 1

CONTENTS

Acton, L.

Dholakia, L.

Addington, L.

Dixon, L.

Ahmed, L.

Donoughue, L.

Allenby of Megiddo, V.

Dormand of Easington, L.

Alton of Liverpool, L.

Dubs, L.

Amos, B.

Elder, L.

Andrews, B.

Evans of Parkside, L.

Ashley of Stoke, L.

Ezra, L.

Ashton of Upholland, B.

Falconer of Thoroton, L.

Avebury, L.

Falkland, V.

Bach, L.

Farrington of Ribbleton, B.

Barker, B.

Faulkner of Worcester, L.

Barnett, L.

Fitt, L.

Bassam of Brighton, L.

Gale, B.

Berkeley, L.

Geraint, L.

Bernstein of Craigweil, L.

Gibson of Market Rasen, B.

Blease, L.

Gilbert, L.

Borrie, L.

Goldsmith, L.

Brooke of Alverthorpe, L.

Goodhart, L.

Brookman, L.

Gordon of Strathblane, L.

Brooks of Tremorfa, L.

Goudie, B.

Bruce of Donington, L.

Gould of Potternewton, B.

Burlison, L.

Graham of Edmonton, L.

Carter, L. [Teller]

Greaves, L.

Castle of Blackburn, B.

Grenfell, L.

Christopher, L.

Harris of Greenwich, L.

Clarke of Hampstead, L.

Harrison, L.

Clinton-Davis, L.

Haskel, L.

Cocks of Hartcliffe, L.

Hayman, B.

Cohen of Pimlico, B.

Hogg of Cumbernauld, L.

Craig of Radley, L.

Hollis of Heigham, B.

Crawley, B.

Hooson, L.

David, B.

Howells of St. Davids, B.

Davies of Coity, L.

Howie of Troon, L.

Davies of Oldham, L.

Hoyle, L.

Desai, L.

Hughes of Woodside, L.

1389

Hunt of Chesterton, L.

Redesdale, L.

Hunt of Kings Heath, L.

Rendell of Babergh, B.

Irvine of Lairg, L (Lord Chancellor)

Richard, L.

Rodgers of Quarry Bank, L.

Islwyn, L.

Rogers of Riverside, L.

Janner of Braunstone, L.

Roll of Ipsden, L.

Jay of Paddington, B. (Lord Privy Seal)

Russell, E.

Scotland of Asthal, B.

Jenkins of Putney, L.

Serota, B.

Judd, L.

Sharp of Guildford, B.

King of West Bromwich, L.

Shepherd, L.

Lea of Crondall, L.

Sheppard of Liverpool, L.

Lester of Herne Hill, L.

Shore of Stepney, L.

Lipsey, L.

Simon, V.

Lockwood, B.

Smith of Clifton, L.

Lofthouse of Pontefract, L.

Smith of Gilmorehill, B.

Longford, E.

Smith of Leigh, L.

McCarthy, L.

Stoddart of Swindon, L.

Macdonald of Tradeston, L.

Stone of Blackheath, L.

McIntosh of Haringey, L. [Teller]

Strabolgi, L.

Taylor of Blackburn, L.

McIntosh of Hudnall, B.

Thomson of Monifieth, L.

MacKenzie of Culkein, L.

Thornton, B.

Mackenzie of Framwellgate, L.

Tomlinson, L.

McNally, L.

Tordoff, L.

Maddock, B.

Turnberg, L.

Mallalieu, B.

Turner of Camden, B.

Mar, C.

Wakefield, Bp.

Mason of Barnsley, L.

Walker of Doncaster, L.

Methuen, L.

Wallace of Saltaire, L.

Miller of Chilthorne Domer, B.

Walmsley, B.

Mishcon, L.

Walpole, L.

Mitchell, L.

Warner, L.

Molloy, L.

Warwick of Undercliffe, B.

Morris of Castle Morris, L.

Wedderburn of Charlton, L.

Newby, L.

Whitaker, B.

Nicol, B.

Whitty, L.

Northover, B.

Wilkins, B.

Parekh, L.

Williams of Crosby, B.

Perry of Walton, L.

Williams of Elvel, L.

Peston, L.

Williams of Mostyn, L.

Phillips of Sudbury, L.

Williamson of Horton, L.

Plant of Highfield, L.

Winston, L.

Ramsay of Cartvale, B.

Woolmer of Leeds, L.

Rea, L.

Young of Old Scone, B.

NOT-CONTENTS>

Anelay of St Johns, B.

Dacre of Glanton, L.

Astor of Hever, L.

Dean of Harptree, L.

Attlee, E.

Denham, L.

Bagri, L.

Dixon-Smith, L.

Blaker, L.

Eccles of Moulton, B.

Blatch, B.

Eden of Winton, L.

Boardman, L.

Elles, B.

Brabazon of Tara, L.

Elliott of Morpeth, L.

Brittan of Spennithorne, L.

Elton, L.

Brookeborough, V.

Ferrers, E.

Burnham, L. [Teller]

Fookes, B.

Buscombe, B.

Freeman, L.

Byford, B.

Geddes, L.

Caithness, E.

Glenarthur, L.

Campbell of Alloway, L.

Glentoran, L.

Campbell of Croy, L.

Goschen, V.

Carnarvon, E.

Gray of Contin, L.

Carnegy of Lour, B.

Hanham, B.

Carr of 'Hadley, L.

Hayhoe, L.

Chadlington, L.

Henley, L. [Teller]

Clark of Kempston, L.

Higgins, L.

Coe, L

Hodgson of Astley Abbotts, L.

Colwyn, L.

Hogg, B.

Cope of Berkeley, L.

Howe, E.

Courtown, E.

Howell of Guildford, L.

Cox, B.

Hunt of Wirral, L.

Cranborne, V.

Hurd of Westwell, L.

Crickhowell, L.

Jopling, L.

1390

Kimball, L.

Parkinson, L.

Kingsland, L.

Pearson of Rannoch, L.

Knight of Collingtree, B.

Peel, E.

Laird, L.

Pilkington of Oxenford, L.

Lane of Horsell, L.

Platt of Writtle, B.

Lawson of Blaby, L.

Plummer of St. Marylebone, L.

Luke, L.

Prior, L.

Lyell, L.

Rawlings, B.

Mackay of Ardbrecknish, L.

Reay, L.

Mancroft, L.

Renton, L.

Marlesford, L.

Roberts of Conwy, L.

Marsh, L.

Rotherwick, L.

Mayhew of Twysden, L.

Seccombe, B.

Molyneaux of Killead, L.

Selborne, E.

Monro of Langholm, L.

sharples, B.

Mowbray and Stourton, L.

Shaw of Northstead, L.

Simon of Glaisdale, L.

Moynihan, L.

Skelmersdale, L.

Murton of Lindisfarne, L.

Soulsby of Swaffham Prior, L.

Naseby, L.

Stodart of Leaston, L.

Noakes, B.

Strange, B.

Northbourne, L.

Strathclyde, L.

Northbrook, L.

Swinfen, L.

Northesk, E.

Vinson, L.

O'Cathain, B.

Vivian, L.

Oppenheim-Barnes, B.

Waddington, L.

Oxfuird, V.

Wade of Chorlton, L.

Palmer, L.

Wilcox, B.

Park of Monmouth, B.

Young, B.

Resolved in the affirmative, and amendment agreed to accordingly.
4.42 p.m.
The Deputy Speaker: My Lords, under the rules of pre-emption, I should tell the House that Amendment No. 74 cannot be called.
[Amendment No. 75 had been withdrawn from the Marshalled List.]
Viscount Bledisloe Viscount Bledisloe had given notice of his intention to move Amendment No. 75A:
Clause 13, page 8, line 17, after ("origin,") insert ("or any house, building, erection, wall, fence, hedge, gate or stile constructed or retained on the land for the purpose of any natural use of the land,").
The noble Viscount said: My Lords, I have to say that I found the Minister's response to our debate profoundly unsatisfactory. It is unfortunate that, for technical reasons, the amendment tabled in the name of the noble Earl, Lord Peel, cannot be called and I accept that the amendment tabled in my name is no longer entirely apt, given that Amendment No. 73 has been put on to the face of the Bill. I shall therefore not move my amendment, but I shall certainly return to the topic on Third Reading.
In the meantime, I would ask the Minister to study carefully what I have said because he did not answer any of my points and I felt that his response was not acceptable. As I have said, we shall have to deal with this again on Third Reading, using a new amendment which has been adapted to the Bill as it now stands.
[Amendment No. 75A not moved.]
[Amendment No. 76 not moved.]
Lord Whitty Lord Whitty moved Amendment No. 77:
Clause 13, page 8, line 18, at end insert—
("(6C) Subsection (6A) does not prevent an occupier from owing a duty by virtue of this section in respect of any risk where the danger concerned is due to anything done by the occupier—

(a) with the intention of creating that risk, or

(b) being reckless as to whether that risk is created."

(3) After section 1 of that Act there is inserted—

Countryside and Rights of Way Bill

  Special considerations relating to access land.
  1 A. In determining whether any and if so what duty is owed by virtue of section 1 by an occupier of land at any time when the right conferred by section 2(1) of the Countryside and Rights of Way Act 2000 is exercisable in relation to the land, regard is to be had, in particular, to—

  (a) the fact that the existence of that right ought not to lace an undue burden (whether financial or otherwise) on the occupier,

  (b) the importance of maintaining the character of the countryside, including features of historic, traditional or archaeological interest, and

  (c) any relevant guidance given under section (Codes of conduct and other information) of that Act.").

  [Amendment No. 78, as an amendment to Amendment No. 77, not moved.]
  On Question, amendment agreed to.

Far East Prisoners: Ex Gratia Payment
4.44 p.m.
Lord Burlison: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my honourable friend the Parliamentary Under-Secretary of State for Defence. The Statement is as follows:
"In April this year, my right honourable friend the Prime Minister held a meeting with representatives of the Royal British Legion to discuss the British groups who had been held prisoner by the Japanese during the Second World War. He subsequently initiated a reconsideration of the long-standing policy of Her Majesty's Government towards these Far East prisoners. Owing to the complexity of the issues involved, that review took time to carry out but it has now been completed.
"I am very pleased to be able to inform the House that as a result of the review the Government have decided to make a single ex gratia payment of £10,000 to the surviving members of the British groups who were held prisoner by the Japanese during the Second World War, in recognition of the unique circumstances of their captivity. Where a person who would have been entitled to this payment has died, their surviving spouse will be entitled to receive it instead.
"As honourable Members will recall, on a number of occasions in recent months this House has debated the situation of those who were held prisoner in the Far East during the Second World War. The reason we have done so is that what happened to those prisoners was often so appalling that for many it has remained with them for the rest
1392
of their lives. Many Members will be aware of the stories told by now frail constituents about that terrible time; members of the public will be familiar with the books and films about it. However, if we look back at the histories, we come across a simple, stark fact that makes clear to everybody the enormity of what happened. Of the 50,016 British service personnel who were reported captured by the Japanese, 12,433 died or were killed in captivity. In other words, conditions were so bad that one in four did not survive.
"We are all very thankful that such a situation did not occur anywhere else during the Second World War and has not recurred since. The unique nature of the Japanese captivity in the Far East was recognised in the 1950s, when those who had been held became eligible for modest payments from assets, made under the provisions of the 1951 San Francisco Treaty of Peace with Japan. As noble Lords are aware, the maximum payment available at that time was £76.10s.
"In the intervening years, the former Far East prisoners pursued the issue of additional compensation with Japan. More recently, they have also campaigned for the British Government to make a payment. However, as Members of both sides of the House will be well aware, it has been the policy of successive governments over many years not to make payments in such circumstances.
"We are now making an exception for the British groups that were held prisoner by the Japanese during the Second World War in recognition of the unique circumstances of their collective captivity. Those who will be entitled to receive the payment are former members of Her Majesty's Armed Forces who were made prisoners of war, former members of the Merchant Navy who were captured and imprisoned and British civilians who were interned. Certain other former military personnel in the colonial forces, Indian army and Burmese armed forces who received compensation in the 1950s under United Kingdom auspices will also be eligible. As I said earlier, where a person who would have been entitled to this payment has died, their surviving spouse will be entitled to receive it instead.
"We estimate that up to 16,700 people may be eligible for these ex gratia payments, which will accordingly cost up to £167 million to make. I shall not now go into detail about the new payment scheme, except to say that this single ex gratia payment will not be taxable, nor will it be taken into account for benefits purposes. We intend to make these payments as quickly as possible, although it will take a little time for the appropriate regulations to be made. However, we expect everything to be in place by February.
"Further details of the scheme are being published today in a leaflet by the War Pensions Agency, which will be administering it. A copy will be placed in the Library of the House. The leaflet and a claim form will also be available on the agency's website.

1393
"The Government recognise that many UK citizens, both those serving in the Armed Forces and civilians, have had to endure great hardship at different times and in different circumstances. But the experience of those who went into captivity in the Far East during the Second World War was unique. We have said before that we believe the country owes a debt of honour to them. I hope that I am speaking for everyone here when I say that today something concrete has been done to recognise that debt."
My Lords, that concludes the Statement.
4.49 p.m.
Lord Burnham: My Lords, I thank the Minister for repeating the Statement. I hope that he will not take it the wrong way when I say that we hope for the speedy return of his noble friend the Minister of State.
We welcome unconditionally the generous and good offer that the Government are making to former Far East prisoners of war and their dependants. Many congratulations should be offered to the Royal British Legion, the Far East prisoner of war associations and the other bodies which have fought so hard and so long for the settlement that has been announced today.
It is understandable that it has taken so long to make this settlement because up until 1998 we had been hoping that the Japanese Government would pay compensation to the former prisoners of war. It is only since that time, after the final decision in their high court that they would not make such a payment, that it became clear that other governments would have to do so. The pattern has been set by the Canadians and Her Majesty's Government have rightly followed.
I particularly welcome three aspects of the payment: that it will be paid to all who were imprisoned or interned in the Far East, including civilians, men and women, members of the Merchant Navy and others; that it will he paid to widows, for they, too, suffered from the difficulties, dangers and horrors that their men endured in prison; and that the payment will not be taxable or set against benefits.
These have been the forgotten warriors. It is appropriate that in this week the forgotten army should be remembered.
4.52 p.m.
Baroness Williams of Crosby: My Lords, I, too, thank the Minister for repeating the Statement. While nothing can ever compensate the men and women who suffered at Japanese hands during the Second World War, it is excellent that the Government have recognised their plight and have made a generous offer, which, as I understand it, extends to both widows and civilian internees. Perhaps the Minister can say whether the same conditions will apply to them as to members of the Armed Forces.
1394
I should like to point out the substantial difference between the way in which the German Government have treated those who were enslaved as workers during the war and those who worked as slaves in the Far East and who, to this day, have still not been compensated by the Japanese Government.
Perhaps I may ask the Minister two questions. First, what is the position of those who are now citizens of Hong Kong who were previously subjects of the United Kingdom, who suffered equally from internment and who, in some cases, were members of the Armed Forces? For reasons quite outside their control, some of them are now Hong Kong citizens— and therefore citizens of the Republic of China— rather than British citizens, but their position, their plight and the suffering that they underwent was not very different from that of the citizens to whom the Minister has referred.
Finally, can the Minister say a little more about the section in the Statement that deals with those who served with us from Commonwealth countries, particularly those from India, Burma and the colonial forces? Perhaps he can say how far the settlement will extend to them. He mentioned them, but be did not say in precise terms who would qualify and who would not.
May I again say how grateful we are that the Government have recognised the desperate position of those who served and then suffered so much at the hands of the Japanese during the Second World War?
4.54 p.m.
Lord Burlison: My Lords, I thank the noble Lord, Lord Burnham, for his kind remarks about my noble friend Lady Symons. I shall certainly pass them on to her. We hope that she will return very quickly.
The remarks of the noble Lord were well meant and genuinely appreciative of the move that has now been made. I am sure that he will wish to join with the Government in celebrating the fact that we have now been able to do what needed to be done—perhaps many years ago—for these people.
The noble Baroness added her welcome to the Government's decision. She asked about civilian internees. As I understand it, that group involves a number of people. They will, of course, be recognised. Should any of those she mentioned fall outside the scheme, I shall write to the noble Baroness with details. Similarly, I expect those colonials—from wherever they came—who were part of this group, and who were prisoners of war during that period on our behalf, to be recognised.
So far as concerns those who were imprisoned or interned for other reasons—for instance, as the noble Baroness mentioned, those from states such as Hong Kong— details are not yet fully available on this issue. I shall ensure that the noble Baroness is informed of the position of such people.
Lord Burnham: My Lords, before the noble Lord sits down, in reply to the noble Baroness he referred to

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other persons who would receive the compensation. Does not the Statement describe who they are when it refers to:
"Certain other former military personnel in the colonial forces, Indian army, and Burmese armed forces who received compensation in the 1950s under UK auspices"?
It would seem to be quite clear from that.
Lord Burlison: My Lords, I thank the noble Lord for his intervention. I tried to indicate that the people mentioned were indeed covered. I was a little concerned that the noble Baroness may have touched on a group outside those. It was for that reason that I was cautious in my answer. I shall ensure that the noble Baroness is given the correct reply.
4.56 p.m.
Lord Craig of Radley: My Lords, I thank the Minister for repeating the Statement and for the excellent news for those who will benefit from this sum of money. It is very late in coming for 80 year-olds, but it is, nevertheless, very welcome.
In relation to spouses, is there any restriction on the period of marriage? If the spouse has remarried, will that affect the payment of this sum of money?
Lord Burlison: My Lords, while I did not comprehensively cover the issue of spouses in my delivery of the Statement, I should like to assure the noble Lord that, to my knowledge, nothing will debar spouses from receiving the payment. The Government have tried as hard as they possibly can to ensure that a surviving spouse will receive her husband's entitlement. One or two complications may arise in this area, but the Government intend to ensure that, whatever the circumstances, a surviving spouse will receive her husband's entitlement.
The Lord Bishop of Wakefield: My Lords, as the only diocesan bishop whose father was killed in action during the Second World War—although against the Germans—I warmly welcome the Government's Statement. One of my former clergy was in action against the Japanese; he was captured and suffered grievously at their hands. Throughout the remaining years of his ministry after he returned to this country, the effect on that and his family life was terrible to see. I believe that what hurt him most was his feeling that all that he and so many others had gone through was not really appreciated by those of us back home. I welcome what the Government have said and I understand why the payment has been so long in coming. This afternoon I feel for the dead priest and the fact that this has come, sadly, too late for him and for many others.
Lord Burlison: My Lords, I thank the right reverend Prelate for his comments and for his compliments to the Government on their action. I sympathise with his friend and with the many other prisoners of war who suffered during that period. I point out to noble Lords that as regards prisoners of war in the Far East, the
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reason we have taken this decision is because of the unique circumstances in which they found themselves during their captivity.
Lord Grenfell: My Lords, I rise with some emotion to declare an interest. My brother-in-law was captured at Singapore. He had a very unpleasant time in Changi gaol. He then worked on the Burma railway. Happily, he is still with us at the age of 83. I know that during the 55 years since his release he has been very much looking forward to the day when the plight of the prisoners would be recognised. I know that while he bore in stoic silence his astonishment at the treatment meted out after their release—a payment of £76.10s—he was very active in seeking redress for colleagues worse afflicted than he was.
I am sure that he will be enormously relieved to know that the surviving spouses of his PoW colleagues who died in the intervening years will be the beneficiaries. Would it not be appropriate that with their payment they receive a letter from the Government thanking them for their great patience in waiting for this compensation?
Lord Burlison: My Lords, I thank my noble friend for his comments, particularly in relation to countries such as Singapore where many people suffered during that period in a similar fashion. I take note of my noble friend's comment as regards a letter. I shall raise the issue outside the Chamber.
Lord Renton: My Lords, is the noble Lord aware that a high proportion of the Armed Forces who became prisoners of war were members of the East Anglian Division? Many were constituents of mine when I was elected in 1945. They suffered terribly. Many wondered whether they would survive their time in captivity and, thank goodness, a few of them did return including, as noble Lords may remember, Lord de Ramseay who became Lord Lieutenant of Cambridgeshire.
As the patron of the Huntingdonshire Royal British Legion I add my thanks for the Government's decision.
Lord Burlison: My Lords, I thank the noble Lord for his comments. I am sure that many Members and ex-Members of Parliament must have had similar circumstances brought to their attention. I certainly appreciate how the noble Lord feels at this time.
Baroness Strange: My Lords, I give heartfelt thanks to the Government for this very welcome news today about prisoners of war in the Far East, however late. I congratulate the Minister on his Statement. Can he tell us whether widows of Japanese prisoners of war who died in Japanese camps will also benefit as well as the widows of those who have since died?
Lord Burlison: My Lords, I hope I shall not mislead here. If there are living widows of prisoners of war who

1397
died in the camps, my assessment is that they will come within these particular circumstances. I shall clear that matter and ensure that the Baroness is written to.
Lord Phillips of Sudbury: My Lords, a former partner of mine, Colonel Cecil Wells, of the Suffolk Regiment, was in Japanese prisoner of war camps throughout the war. He died just 15 days ago. Do I understand from the Minister's Statement that his estate will not receive anything or is the proposed date for the award prior to today? If, as I suspect, the answer is that the Statement shows that the award is from today and his wife died some while ago, is there no intention on the Government's part for any part of the sum to inure for the benefit of his children?
Lord Burlison: My Lords, I believe that it is clear from the scheme that the ex-gratia payment starts from today. Under these circumstances it is always very difficult to create the date when such a payment is applied. If his widow had survived him she would have been entitled to the payment. In the circumstances it is my view that there is no entitlement to the payment. If anyone were to die from this point on, the estate would receive the £10,000.
Lord Monro of Langholm: My Lords, I am sure that we shall all wish to recognise the hard work of the Burma Star Association and particularly the noble Viscount, Lord Slim, in this area. As an RAF pilot I flew a number of our prisoners of war back from Singapore to Ceylon at the cessation of hostilities. I can confirm their dreadful physical condition. Subsequently, as a constituency MP, a number of ex-prisoners of war and their wives came to see me and put forward their case very strongly indeed. The Government have done extremely well over the settlement. Many people will feel that at long last they have been appreciated.
Lord Burlison: My Lords, when I hear people like the noble Lord, Lord Monro, speak of their activities I feel quite humble. I really appreciate the comments that he made as regards the Government's effort.
Lord Weatherill: My Lords, as one who fought in the Burma campaigns with Indian troops, I pay tribute to Her Majesty's Government for this generous settlement. Perhaps I may say how sorry I am that the noble Viscount, Lord Slim, who is president of the Burma Star Association, is unable to be with us today. The Burma Star Association, the British Legion and the Far East Prisoners of War Association have been fighting for a long time for this recognition.
The Minister said that Indian troops who were prisoners of war will be included in this settlement. How will the Government go about discovering exactly who they are and how many exist in the subcontinent today? This is a very generous settlement for them; such a sum of money will be of colossal advantage. How will the Government go about discovering exactly who they are?
Lord Burlison: My Lords, I thank the noble Lord for his comments in relation to the ex gratia payment, and
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for his mention of the noble Viscount, Lord Slim. On the question of benefit for Indian troops and colonials who became prisoners of war, I understand that there is a record of most of those who were involved. I believe that the organisations concerned also have a record. There will be an effort on behalf of the Government to ensure that all groups are contacted so that those who are entitled to payments receive them. That includes the group that the noble Lord mentioned. I believe that there are presently about 100 people on the record.
Lord Hardy of Wath: My Lords, in August 1945, as my family prepared to light bonfires for the VJ celebrations, my grandfather received a telegram saying that his son, my uncle, would not be returning from his Far Eastern captivity. My uncle's wife died quite a long time ago. So that is one family who will not receive any financial benefit. But there will be thousands of families in that position who will very much welcome the recognition and appreciation demonstrated today.
Lord Burlison: My Lords, I thank the noble Lord for making that point.
Lord Graham of Edmonton: My Lords, many Members of this House who served as Members in another place will have memories of trying over the years to deal with the plight of constituents who were in need of assistance. Those of us who regularly attend memorial services in November will be able to hold our heads up a little higher in future. I am sure that I speak on behalf of many. I ask the Minister to take back to his colleagues our gratitude for taking action now, and so generously.
A voice that we should have heard, had he been present, would have been that of my noble friend Lord Molloy, who was deeply involved in the work of the British Legion. He had a distinguished war record, but never lost an opportunity to stand up and defend the interests not only of prisoners but of ex-servicemen. Perhaps the Minister will allow me to place on record the gratitude of my noble friend in his absence.
Lord Burlison: My Lords, I thank my noble friend for his comments. I am delighted to take them back to my colleagues. I should also like to associate myself with his mention of the noble Lord, Lord Molloy, and the efforts of the British Legion.
Lord Sandberg: My Lords, my noble friend Lady Williams raised a question about civilians in Hong Kong, Singapore and Malaya. There were two categories. My predecessor, a chief of the Hong Kong Bank, was tortured to death. But there were also people who were called up and who fought for King and country in Hong Kong, Singapore and Malaya. Is there a differential between those who died or were taken prisoner fighting, and those who were taken prisoner merely because they were British and living in what were then colonies?
Lord Burlison: My Lords, I am looking desperately across at the Box in relation to this issue. I do not believe that there is a difference; however, I shall write to the noble Lord on the matter.
Lord Gilbert: My Lords, will my noble friend give the House two assurances? First, will Her Majesty's Government do everything in their power to make sure that this extremely welcome decision receives as much publicity as possible inside Japan? Secondly, will my noble friend assure us that it is no part of the settlement that those attempting to bring pressure to bear on the government of Japan to recognise their responsibilities in these matters should desist their activities?
Lord Burlison: My Lords, I thank my noble friend for his comments. I know of no pressure that is likely to be put on the groups he has mentioned. I hope that that will not be the case.
Lord Hodgson of Astley Abbotts: My Lords, I join other noble Lords in welcoming the Statement. However, I should like to discharge a debt. Noble Lords have referred to the privations that prisoners of war underwent. When I was a 14 year-old schoolboy, in 1956, I was taught by a man of extreme gifts—one of those teachers who have a profound influence on one's life. One afternoon, as a result of an episode in a classroom, he burst into tears. He had spent three years on the Burma railway and the episode had brought back to him some of the extraordinary privations he had undergone. He died a bachelor some years ago. I feel that I owe it to him to say that we have all allowed far too much time to elapse—it is 58 years since my schoolmaster was captured in Singapore—before righting this grievous wrong.
Lord Burlison: My Lords, I thank the noble Lord for his comment. The Government have now taken steps to make this ex gratia payment. Indeed, many of us feel, as he does, that the action has possibly come a little too late. Nevertheless, it has been taken now, and I am sure that the noble Lord will welcome it in the same fashion as other noble Lords have done.

Countryside and Rights of Way Bill
5.18 p.m.
Further consideration of amendments on Report resumed on Clause 13.
[Amendment No. 79 not moved.]
Lord Brittan of Spennithorne Lord Brittan of Spennithorne moved Amendment No. 80:
After Clause 13, insert the following new clause—

Countryside and Rights of Way Bill

  INDEMNITY FOR COSTS OF ACCESS
  (" .—(1) Any person having an interest in access land shall be entitled to be indemnified for any additional costs and expenses reasonably incurred as a result of the right conferred by section 2(1) or for any liability or loss resulting from the exercise, or purported exercise, of that right, which he cannot practicably recover from any other person.
  (2) The Secretary of State shall make regulations as to the conditions for entitlement to such indemnity and as to the form and procedure by which such amounts may be recovered.").
  The noble Lord said: My Lords, I move this amendment on behalf of the noble Viscount, Lord Bledisloe.
  It is reasonable, as a matter of common justice, to provide that someone whose land becomes less valuable as a result of the granting of the right of access to that land should receive compensation. Also, apart from whether it is reasonable, it is highly likely to be a breach of Article 1 of the human rights convention if the Bill is passed without the possibility of redress in those circumstances. I shall not repeat my remarks in Committee on this issue, and I apologise for being absent for so much of the subsequent debate—although I shall return to the matter later in our proceedings.
  The amendment does not relate directly to the issue of compensation. However, if passed, it would help to reduce the chances of the legislation falling foul of human rights legislation. It is a modest and limited proposal. It is based on the premise that, in the first instance, the person who has suffered loss and incurred costs has a duty to recover them from the person who has caused those costs or expenses to be incurred—for example, in a situation where it is necessary to repair damage to a wall caused by someone purporting to exercise the right of access. It is only if it is not practical to recover the costs and expenses incurred as a result of someone exercising or purporting to exercise the right of access that the provision bites. So it is very narrowly defined, as well as being a most reasonable provision.
  However, the question arises as to whether it is likely or feasible that costs or expenses will be incurred as a result of the access provisions. There is little doubt that that is the case. It may be necessary to post notices advising of closures—closures that are permitted under the legislation as it has now reached this House. It may also be necessary to make risk assessments in relation to gates or stiles, which will involve expense. Indeed, it may be necessary to fence off mines. Above all, as a result of the provisions of the legislation, expense may be incurred as regards the necessity to increase insurance premiums. If I may say so, the attitude of the Government to the previous set of amendments makes it all the more likely that costs and expenses will be incurred, whether because of suits as a result of liability or the increased insurance necessary to avoid such suits.
  Therefore, it is necessary to take account of the Bill as it stands when considering such matters. Although it has been improved as a result of government amendments, it is, none the less, perfectly plain that substantial costs will be incurred by many people and that such costs will not always be recoverable in practice, as opposed to in law, from anyone who is guilty in that respect. Indeed, in some cases there will not be anyone in particular who is responsible.
  When considering this issue and my later amendment proposing a new compensation clause, it is necessary to take account of the fact that it is the

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  Government's intention and desire—indeed, the whole purpose of the legislation—that there should be a substantial increase in the number of people who go on to the type of countryside covered by the Bill; otherwise, there would be no point in it. Therefore, something that does not involve cost, or which involves modest cost at present, will inevitably lead to substantially greater cost, or costs that previously did not exist, if what we are talking about turns out to be a flood right across the land rather than a trickle on a right of way.
  We do not know how many people will exercise the right, but I am sure that the Government would not go through the trouble of introducing this legislation unless they assumed that the numbers would be quite substantial. There is a difference, which may be a difference in kind, not just a difference in quantity, when one is talking about large numbers of people following unfamiliar paths and going anywhere over land. The prospect of costs and expenses being incurred that are irrecoverable from any particular person is a real one. It would be unjust, unfair and probably contrary to the provisions of the convention on human rights for there to be no means of redress in such circumstances.
  I see that, the noble Viscount, Lord Bledisloe, on whose behalf I have been proposing the amendment, is now back in his place. I am sure that a more full and cogent exposition of the merits of this proposed new clause will come from his lips in due course. I beg to move.
  Viscount Bledisloe: My Lords, I shall begin my apologising for not being in my place when the amendment was called. My only mitigation, which may not excuse me, is the fact that the annunciator indicated that the House was still dealing with the Statement. I thank the noble Lord, Lord Brittan, for moving the amendment. As for the part of his speech that I heard, he certainly did so very much better than I could have clone. I am sure that he did equally as well in the part of his speech that I did not hear.
  The amendment is based on the simple and, I venture to say, undeniable principle that a man must not be out of pocket because the Government have decided to give other people the right to walk across his land. I stress the words "out of pocket". This is not a clause about compensation; it is a clause solely about reimbursement of actual expenditure or loss. At present, if someone working with the Duke of Edinburgh's scheme, or whatever, seeks permission to take people across an occupier's land, the latter can say, "Yes, all right; but you must pay for any damage caused"— for example, a wall may be knocked down, sheep killed or something like that may happen. Even if that is not expressly stipulated, such an organisation would almost inevitably pay voluntarily for any damage caused because those concerned will want to return, and because they are decent people.
  However, why should an occupier be worse off when the Government are giving permission on his behalf for people to enter the land and that results in damage by someone who cannot be identified, or who cannot
  1402
  pay? Why should the occupier have to expend money? Just before we adjourned to deal with the Statement, the noble Lord, Lord Whitty, expressly said, in answer to the previous debate, that in those circumstances a landowner may well have to repair a stile, a gate or something like that—indeed, a stile or a gate that he does not need to use, but one that he has to repair because people will now be coming on to his land. Why should the landowner be put to such expense?
  In Committee, the noble Lord, Lord Whitty, said that,
  "only a very few landowners are likely to be significantly affected".—[Official Report, 3/10/00; col. 1498.]
  I have two points to make in response. First, if that is right, it will not involve much money; and, therefore, I do not know what he is worrying about. Secondly, it is very little consolation to one landowner, who is "significantly affected" and seriously out of pocket, to know that there are many other occupiers who are not in the same boat. Indeed, one might go as far as to say that it will really add insult to injury to know that he is one of the few people who is suffering serious loss. The whole point of the concept of reimbursement of actual loss is to protect those people, who the noble Lord, Lord Whitty, may say will be relatively few, who are adversely affected.
  I should also stress the point made by the noble Lord, Lord Brittan, about the convention on human rights. In the light of that point, I am absolutely confident that those on the Liberal Democrat Benches who are so enthusiastic about that legislation will no doubt feel very keen to support this amendment.
  Baroness Miller of Chilthorne Domer: My Lords, given that cue, I think that I should speak next. We are keen to support the Human Rights Act. I am sure that we shall return to that legislation when we deal with the other amendment tabled in the name of the noble Lord, Lord Brittan. However, I am not sure that this amendment is very attractive to us, except in a superficial way. Perhaps I may explain to noble Lords the problems that we have with it.
  The amendment would encourage landowners to seek individual solutions every time that there seemed to be a problem or a cost involved. When we discuss the issue of wardens later, I believe that we shall begin to realise why an individual solution to every situation may well be less desirable than having a warden appointed to deal with the problems that will arise as a result of open access to land. It may perhaps be clearer if I give noble Lords an example.
  An individual may well have already suffered as a result of granting open access on his land prior to this legislation coming into force. That may well be in the form of path erosion, especially if the land in question is popular. Where you have an access authority that is both active and responsible, the solution may be to form a partnership. Here I must declare an interest as I am vice-president of the British Trust for Conservation Volunteers (BTCV). That partnership could be formed between, say, the voluntary sector, the private sector—for example, the hotels in the

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  area—and the public sector. I think of the example of a national park authority. I should declare another interest as I am married to the chairman of Exmoor National Park Authority. I suggest that a successful partnership can be established to deal with the problem of path erosion.
  Many other solutions would be more effective than simply paying an individual to solve a problem. That would be expensive for the public purse and may not prove to be the best solution. I certainly believe in looking after the interests of the public and the landowner in terms of ensuring that the public do not behave in an irresponsible manner. I believe that a warden scheme is likely to be the most effective solution to the problem we are discussing rather than a landowner employing someone to deal with it. I fear that Amendment No. 80 might lead us too far down the individual solution path. Therefore, we do not support it.
  5.30 p.m.
  Lord Brittan of Spennithorne: My Lords, before the noble Baroness sits down, does she agree that, in the absence of the solution that she proposes and in the absence of any kind of guarantee of proper wardening, individuals will incur costs and expenses and it is right that those should be met? Only if she were completely confident that all of those costs and expenses could be met some other way would there be any justification for rejecting the amendment.
  Baroness Miller of Chilthorne Domer: My Lords, if our amendments on local access forums had not been accepted and therefore landowners in the areas concerned did not have a strong voice, I might agree with the noble Lord. However, those amendments have been accepted and landowners will be strongly represented on local access forums. Given that landlords will have a strong voice and will have an input as to how public money will be spent in their interest as well as in that of the user groups, that solution should be the right one.
  Viscount Bledisloe: My Lords, before the noble Baroness sits down, I think that she has misunderstood the purpose of the amendment. It seeks to compensate for expenses, costs and loss reasonably incurred as a result of the right we are discussing. It does not mention preventing damage through wardening. I fully accept what the noble Baroness said in that regard but I am talking about the situation where harm has occurred—for example, where one's sheep have been killed and one cannot find the man responsible; or where one has had to repair a stile; or where one's wall has been knocked down. None of that can be stopped by a warden. I fully accept that, where the access authority can deal with a situation, the damage will not be considered to be reasonably incurred. The amendment does not concern wardening or prevention but compensation or indemnification
  1404
  against out of pocket expenses. The noble Baroness mentioned human rights but is she confident that the amendment on compensation will be accepted?
  Baroness Mallalieu: My Lords, the provisions appear to be tightly drawn and do not relate to the kind of circumstances which the noble Baroness mentioned, for example, where there is already some erosion on paths and where schemes are already in place. The amendment deals specifically with instances where additional costs and expenses fall to the occupier as a direct result of the right given by this legislation, or the circumstances that the noble Viscount has just mentioned where some loss or liability results directly from the exercise of the right which is given under the Bill.
  The purpose of the Bill, after all, is to give the public rights of access which they did not previously have. The burden of those rights of access must necessarily fall on landowners. Legislation which is intended to benefit us all should surely be paid for by us all. Few costs may result from the provisions. Other agencies or in some cases individuals may be responsible for the costs. But where a private landowner necessarily incurs out of pocket expenses in order to provide rights which all the rest of us can enjoy, there must surely, as a matter of fairness quite apart from any legal justification, be some provision in the legislation for those expenses to be met; otherwise, fairness goes out of the window.
  Earl Peel: My Lords, I too support the amendment moved by the noble Lord, Lord Brittan. Again I declare an interest here. It might be worth remembering that when the Peak park authority drew up its access provisions—I believe that that occurred some time in the 1980s—it sought the services of the senior district valuer from Scotland whose job it was to assess what costs landowners were likely to incur (by "costs" I mean management costs as well as direct costs) as a direct result of the management agreements that were drawn up between that national park authority and owners and occupiers. Interestingly enough, they arrived at a figure of £4 an acre, notwithstanding any special costs that might have been incurred—to which the noble Viscount, Lord Bledisloe, referred—or indeed the additional costs that landowners would have to incur on fencing mine shafts and so on which we discussed on a previous amendment.
  Therefore a precedent has already been set. I am surprised therefore that the Government are taking what I might regard as a rather cavalier attitude towards this whole question of compensation. Incidentally, in addition to the £4 an acre which was paid to the owner and occupier as a direct result of the intervention of the district valuer from Scotland, it was assessed that the local access authority was likely to incur a further cost of £6 an acre. That would, of course, include the costs of wardening.
  On the question of access forums and wardens dealing with these matters, I am afraid that the noble Baroness is wrong. They will have a role and play a

  1405
  part but they cannot be involved in any agreements that are likely to be drawn up between owners and occupiers and the access authority. Those agreements take time to draw up and they are expensive, as many of us already know to our cost. Certainly any direct costs that are incurred have nothing to do with access forums and wardens. As I say, a precedent has been set. I should have thought therefore that my noble friend's amendment is all the more relevant.
  Lord Northbourne: My Lords, will the Minister explain what happens when access leads to the need for a change in a farming system? I have a particular example in mind. On many hill farms it is still the practice to lamb on the hill. It is believed that lambs grow up hardy as a result of that exposure. On the hill there is much rough country, and lambs and ewes can get behind tussocks of grass for protection. For a variety of reasons many farmers lamb on the hill. The hill may be situated two, three or four miles away from a farm. If people come on the hill with dogs during lambing, or during the period when ewes are heavy in lamb—one must recognise that the shepherds will already be walking the hill in question three times a day—there is a real possibility that on some farms lambing on the hill will cease to be possible. Let us assume for the sake of argument that that is the case. If farming is to be sustained on those farms, it will then be necessary to put up a lambing shed. Who will pay for that lambing shed?
  Baroness Carnegy of Lour: My Lords, on a somewhat smaller but important point, I do not think that my noble friend Lord Brittan mentioned insurance—although I missed the first half-minute of his speech and apologise to him.
  Landowners and occupiers have an insurance policy against people being injured on their land in the general way. In England and Wales there is at present the law of trespass. That is, presumably, mainly an insurance policy against people being damaged by, let us say, a fallen tree on a footpath. My experience is that that is a quite low premium. However, that premium is bound to increase when people can roam across the land in many directions. That will be a cost. Surely that must be recouped in some way because it is a cost expressly imposed by Parliament on people who are running their business. That seems to me an additional reason why the amendment is important.
  Lord Renton: My Lords, I mention two matters in support of 1 he amendment which limit its effect and which the Government should bear in mind with some comfort to themselves. First, subsection (1) refers to,
  "costs and expenses reasonably incurred as a result of the right conferred by section 2(1)".
  I shall not go into the full details of Clause 2(1) because it refers to considerable parts of the Bill. It means that there are limitations.
  The Government can take even more comfort from this second point. Subsection (2) of the amendment provides that the Secretary of State will be able to make regulations as to the conditions for entitlement
  1406
  to the indemnity. That gives the Government very great power for limiting the application. With those two thoughts in mind, I should have thought that the Government would welcome the amendment.
  Lord Monro of Langholm: My Lords, if the Bill is to be a success, the key word is harmony. I refer to harmony between the countryside and those who wish to have access under the new legislation. In order to help those farmers and landowners who put their fences, gates and stiles in good shape, it seems a small concession for the Government to be somewhat more generous than at present.
  We have had some concessions from the Government, but nothing like enough. It would be a big step forward for those who will have to face expensive costs—the landowners or tenants of the land—if the Government were prepared to meet those costs. If the Government agree to meet them, let us try to cut out some of the bureaucracy which attaches at present to almost any application for any grant for any quango in this country. All noble Lords who speak from practical experience of the Ministry of Agriculture, Fisheries and Food, the NCC, English Nature or SNH and so on, know that it is a major task to obtain what the farmer or landowner may consider a legitimate grant.
  If the Government are keen to make the Bill a success—from the efforts they have put into it one presumes that they are—it is right that they should support the amendment put forward so well by my noble friend Lord Brittan and the noble Viscount, Lord Bledisloe, and demonstrate some support for the agricultural and land-owning industry which will undoubtedly be put to immense costs by the Bill. The Minister may say that the provision will affect relatively few landowners and farms. That is all the more reason that he should be more conciliatory.
  5.45 p.m.
  Baroness Thornton: We have spent many days debating how to minimise the impact of the Bill on landowners and land managers, including the cost to them. I am still unclear why Members opposite feel the need for extra compensation. Many of our debates have centred on how to minimise the effects of the Bill and how to provide support through warden schemes and extra financial help. I am not convinced of the need for the amendment.
  Lord Marlesford: My Lords, I wish to raise three points. First, despite what the noble Baroness, Lady Thornton, has just said, the Liberal Party spokesman has not addressed the amendment. Before we vote on the issue, I hope that someone from the Liberal Benches will address the amendment; otherwise it would be rather unreasonable to leave Members of the Liberal Party without guidance. I give way.
  Baroness Miller of Chilthorne Domer: My Lords, with the leave of the House, perhaps I may clarify what I said. The amendment refers to "any"—I emphasise

  1407
  that word— "additional costs and expenses". It does not refer to exceptional costs and expenses. That is why I gave a broad reply. It is a broad amendment.
  Lord Marlesford: My Lords, I am delighted that the noble Baroness has made that point. It brings me to my second point.
  The amendment relates to specific costs, which have to be demonstrable and, therefore, a matter of fact. I am not a lawyer; we are surrounded by brilliant lawyers. But I understand that matters of fact in these cases are for the courts to determine, as the Inland Revenue is always telling us.
  Thirdly, if the Government resist the amendment, do they not put themselves in a different position from other third parties which impose costs on others? I hope that they will deal with that specific point. If they are doing so, perhaps I may suggest to them that under the provisions of the European convention again it will not be for the Government but for the courts to determine whether liability exists.
  Baroness Byford: My Lords, I support the amendment. I was somewhat surprised by the comments of the noble Baroness, Lady Thornton—she is normally very clued up—who implied that, as we have spent a great deal of time on the issue, the amendment is unnecessary. I am sure that I misunderstand her. She is a realist. In reality there is a problem. We have approved government Amendment No. 77 which states that there will be some burdens. The noble Baroness cannot argue that there will be no expenses when the Government clearly expect some. I do not follow her reasoning.
  I shall not repeat the many points raised. However, if the issue will not affect many people, I do not understand why the Government shy away from it. Perhaps there are more hidden issues on the agenda than we have touched on. I do not anticipate that the Government will say no to the amendment. We have not given the Minister a chance to say that he willingly accepts the amendment. I shall encourage him to say that, having heard the many arguments, the Government are willing to consider the amendment.
  Lord Whitty: My Lords, I deeply regret that I cannot respond positively in the way requested by the noble Baroness. We have discussed previously general provisions on compensation. As the noble Baroness, Lady Miller, said, it is a somewhat open-ended call for compensation. Like the noble Lord, Lord Brittan, and others, I acknowledge that the amendment is more precisely drafted than any that we have dealt with before on the subject. It reflects the concern that any right of access will give rise to substantial costs.
  Everything that we have done in the Bill and in every amendment that we have conceded in favour of the landlords minimises the cost on landowners. Substantial costs will not arise in this case. The aim of the Bill is to enable people to walk over countryside that has limited—possibly important, but still limited—use without interfering with the ability of
  1408
  owners or occupiers to use or develop the land as they did before. There is no requirement on landowners to become involved in expenditure to facilitate access to the land.
  The impact of walkers on owners and occupiers will be minimal. The amendments to which we have already agreed will reduce that minimal impact still further. For example, the new restrictions on dogs and feeding livestock that we agreed the other day will limit the impact to which the noble Lord, Lord Northbourne, referred.
  6 p.m.
  Lord Northbourne: My Lords, am I right in believing that the amendments limit the impact of dogs only in fields and enclosures and not on the open hill? I was referring to lambing on the open hill, which is quite common.
  Lord Whitty: My Lords, it depends on the definition of "enclosure". In many cases, hill farming will include an enclosure. The noble Lord may be right in part in relation to dogs, but the main right is for people to walk.
  Lord Northbourne: My Lords, I was referring to Amendment No. 118.
  Lord Whitty: Yes, my Lords, we are referring to the amendments that were debated the other day on dogs in the lambing season. There is only a limited likelihood of any additional cost being imposed on hill farmers as a result of a relatively small number of people walking on the land. Other circumstances, such as severe weather, are much more likely to have an adverse impact on open fell lambing. We do not see any reason to fund the building of lambing sheds or any other change in operations that the farmer might have to undertake.
  If problems arose in a particular area and there was a serious impact on the landowner, the relevant authorities could make a direction to exclude or restrict access during the relevant period. I know that many noble Lords do not trust the access authorities or the countryside authorities to undertake activities in the landowners' interests, but that is a seriously misplaced and wrong judgment. Any impact that seriously affects the ability to carry out land management in the usual way will be taken seriously by the authorities in agreeing to a restriction.
  The liability of owners and occupiers is minimal. It is a liability in relation to trespassers. That minimal liability has been further qualified by the many amendments that we have made during the passage of the Bill, which have been consistently in favour of landowners. The right of access will be tightly prescribed. We will finance the access authorities to fund measures to facilitate access. That cross will not fall on the landowners. The access authorities may well co-operate with landowners in establishing stiles or other means of access, but the cost for access purposes will fall on the access authorities. We also propose to

  1409
  enable the Countryside Agency to operate a grant scheme for works to help landowners manage access in the best possible way.
  We are providing a number of ways to avoid any costs falling on landowners. The demand that compensation should be paid in such a relatively open-ended way because of substantial costs to landowners does not stand up.
  Earl Peel: My Lords, will the Minister address my specific point about the assessment made by the district valuer from Scotland of the costs incurred by landowners because of the access agreements in the Peak park at £4 an acre?
  Lord Whitty: My Lords, on existing access land there are arrangements between the access authority—usually the national park—and landowners, under which payments are made to landowners in respect of access. However, in those places landowners have no right to apply for restrictions, there is no reduction in their liability and there is no provision for reimbursement by the access authorities for expenditure to facilitate access in the way that I have described. All those aspects are reflected in statutory rights or limitations and statutory reimbursement in the Bill. That does not apply to voluntary access in the Peak park.
  Earl Peel: My Lords, with respect, I have a copy of the Peak District National Park Authority agreement on access. There is a general indemnity against anybody incurring liabilities under the agreement.
  Lord Whitty: My Lords, that is not a statutory indemnity. We are talking about the statutory balance between restricting liability, providing for reimbursement and restricting the impact of access to minimise the costs to occupiers and land managers. All of that operates in favour of the landowner. The amendment would provide for financial compensation that is already met by the other provisions of the Bill.
  In some circumstances the landowner will voluntarily undertake certain costs. There may be benefits to him from co-operating with the access authority to provide a facility that benefits him at least as much as it benefits the users of the access right. The costs of making provision solely for access rights would fall on the access authority where it judged the work necessary, not on the landowner.
  The impact may be more significant for a minority of landowners, such as those who own honeypot sites. Our approach is to deal with such situations by agreement and by management. That is why the attack on the noble Baroness, Lady Miller, was misplaced. She said clearly that arrangements ought to be established by consensus and agreement, not by an adversarial process of compensation. The local access forum will have a major role to play, as will the agreements between the access authority and landowners.
  1410
  In some honeypot situations, the landowner will have opportunities to recoup some costs by diversifying and providing commercial facilities. The costs can be met in all sorts of ways. Compensation creates a psychology of confrontation and an inappropriately adversarial arrangement. Only a few hours ago we made provision for local access forums and for arrangements under which the access authority would cover the cost of facilitating access.
  The argument that the Government should provide for compensation if they think that the costs are minimal should be addressed in that context. Providing for a general right of compensation, even in the relatively precise terms of the amendment, means presuming that the issues will be dealt with through a system of compensation and claims, whereas we want the facilitating, managing and operating of access to be addressed in local access forums by agreements and by co-operation between the access authorities and landowners and users.
  It is in that context that we address the problems where costs are incurred. By and large, such costs would be met in other ways. If we start to pro vide for a system of compensation, not only will the access authorities be tempted to say, "OK, that is what we want. If you don't like it then go for compensation", it will also provide for unscrupulous landowners to go through the courts and claim compensation before they agree to any form of access. We want the presumption to be that there will be agreement. This amendment is based on the presumption that there will not be agreement.
  Finally, perhaps I may address—
  6 p.m.
  Lord Roberts of Conwy: My Lords, perhaps the noble Lord will assist me on one point. Much concern has been expressed in many areas about the future of agreements such as those operative in the Peak District, as referred to by my noble friend Lord Peel. Will the passage of this Bill into law mean the end of those agreements?
  Lord Whitty: No, my Lords. As with other voluntary access, the voluntary agreements are not affected directly by this Bill. Should those agreements fall at some point, the statutory back-up may well come into play; currently it does not. However, there is no presumption that such voluntary arrangements would fall with the passage of this Bill and I would not expect them to do so.
  Finally, I address briefly the point raised in relation to human rights. We went over this matter at an earlier stage and I rather suspect that it will be addressed more fully when we come to the later amendment tabled by the noble Lord, Lord Brittan. I was asked to check our legal advice on this matter. I have now done so. The legal advice remains that this issue does not create a problem in relation to the Human Rights Act and that

  1411
  the proposals are fully consistent with that Act. As I said, we may well wish to return to the issue and I shall save further details until then.
  Viscount Bledisloe: My Lords, before the noble Lord sits down, is he aware that he has dealt with only half of the amendment? He has spoken at great length about why the landowner will not need to incur costs and expenses. However, he has not dealt at all with loss caused to a landowner by someone who exercises the right. Someone may let his dog off the lead and it may then kill some sheep. We may not know who that person is or he may not have any money. The noble Lord has not dealt with such a scenario. No amount of saying that the access authority will carry out many good deeds will prevent such a situation happening or give the owner consolation for his dead sheep. The noble Lord has not dealt at all with that aspect.
  Lord Whitty: My Lords, the matter of someone letting loose a dog will not be covered by this Act any more than it is at present by any other legislation. If we expect the statutes of the land to provide for compensation from the public purse for all unidentified vandals and all people who breach the restrictions of the law, that should apply to all property owners and all commercial operations right across the land.
  Once again, the landowners in this debate are seeking special treatment for landowners in this particular situation. That is something that I have attempted to resist throughout our debates. I accept that a degree of balance must be established. However, I do not believe that the type of special treatment sought under this amendment is appropriate in these circumstances.
  Baroness Warnock: My Lords, it must be wrong to say that if this amendment were passed it would mean that unidentified vandalism of any property would have to be compensated by the Government. After all, this Bill proposes a new risk to landowners which is not the same type of risk to which all householders are exposed. Because access will be granted, damage may indeed be incurred to the landowner's property and also to his preferred way of farming, as the noble Lord, Lord Northbourne, has already pointed out. Compensation is being proposed only within the context of this Bill. So far as I understand the amendment, it has no further general application whatever.
  Lord Whitty: My Lords, that is precisely the point that I am making. Effectively, subsection (2) of the amendment suggests that the state will compensate such landowners for unidentified criminal damage— to livestock in the example given by the noble Viscount—whereas in no other situation does the state provide such an indemnity. I do not consider that to be appropriate in these circumstances. Given all the other safeguards that we have built into the Bill in the course
  1412
  of the deliberations in this House, I believe that it would open a door and create a precedent which is not to be found in any other area of property law.
  The Countess of Mar: My Lords, can the noble Lord say in what other circumstances members of the general public can go on private land as a matter of right? What compensation is available for the landowners in such cases? I think particularly of someone who is careless with a cigarette, throws it away and burns a man's grazing. How will the owner of the grazing feed his stock if the area where people are allowed to walk is burnt?
  Lord Whitty: My Lords, it is a criminal offence to light a fire. If one cannot catch the criminal, one cannot prosecute him. That applies just as much to all owners of property as it does to owners of access land. From time to time, all owners of property are subject to graffiti, damage and other activity by vandals and criminals. However, we do not turn to the state to compensate them.
  Lord Brittan of Spennithorne: My Lords, in listening to the Minister's response to this debate, I could not help feeling that his sense of justice was overwhelmed by his admiration for his own generosity. I do not believe that that is a justified response to a debate or an answer to a serious point. In fact, the last points made by the Minister were the least persuasive of all.
  It simply will not do to present this amendment as if it were seeking to give landlords a privileged position or a special benefit. It is wholly different from a situation in which in the ordinary course of events someone suffers loss or incurs expense and cannot recoup it because he cannot find the person responsible or the person cannot find money. The fundamental difference is that in this case the loss and expense have been incurred because of the action of the Government and Parliament in passing this legislation. That is a fundamental difference. It is no use the Minister shaking his head. In a reasonably extended response he has not given a single reason why it is not a wholly different situation.
  The questions that the House must consider are whether costs and expenses are incurred; whether it is reasonable that those should be met; and whether this position is a reasonable way to meet them or whether there is an alternative. I want to address particularly the point made by the noble Baroness, Lady Miller, in the hope that, even at this late hour, I can persuade her to join us in the Division Lobbies where I believe we should go in support of this amendment.
  First, the relevance of what my noble friend Lord Peel said about the situation in the Peak District was simply that there it was recognised that special rights of entry were likely to cause injury or damage and therefore an indemnity existed for that. The point is that the district valuer calculated what the costs were likely to be. That shows that, in circumstances where extended rights of access are given, it is likely that costs will be incurred. From all quarters of the House

  1413
  countless examples have been given of costs, expenses and losses that would be incurred, and the Minister has not been able to deny them for a single moment.
  I turn to the matter of insurance. The Minister made a point about the wonderful provisions in the Bill and the extreme generosity of the Government in mitigating the costs. No one denies the costs, whether they be incurred through insurance or the possibility of loss referred to by the noble Viscount, Lord Bledisloe, in his recent intervention. Money will be expended and costs will be incurred. The question which arises is that, if costs and expenses are incurred as a result of legislation, should there not be a provision for those costs to be met? What is the answer to that? The answer is, first, it will not be as bad as all that because of the all the wonderful things we have done.
  In that regard, I turn to the noble Baroness, Lady Miller, and say that even if you accept that the provisions with regard to access forums make it possible to reduce substantially the risk of damage and losses being incurred, and even if you add to that the further provisions with regard to wardening and all the steps which the Government have genuinely taken which are good to try to reduce the likelihood that there will be costs or the extent of those costs, nobody could possibly say that that is a total solution to the problem. Even if the forums worked wonderfully, the wardens were put into existence and the authorities acted in good faith with generosity, nobody could possibly say that that would prevent costs or expenses being incurred by the individual landowner. At most, it will reduce the amount which will be incurred.
  To the extent that it reduces it, it will reduce the amount of compensation which will be payable under this provision. Therefore, it is not right to say, as the Minister said, that that will stir up litigation and make it confrontational, whereas what the Minister prefers is the more conciliatory approach which has the agreement of everybody concerned.
  Frankly, it is disingenuous to pretend that that is an answer to the debate, because if those provisions with regard to access forums reduce the amount of costs and expenses incurred, nobody could possibly suggest that they will eliminate them. The lower they are, the lower will be the bill that the Government have to meet if this amendment is passed. Therefore, the Minister should welcome it.
  It is quite unfair and meretricious to pretend that this is stirring up litigation or confrontation when everything could be settled peacefully and comfortably around the forum table. That is absolute nonsense and the Minister in his heart of hearts knows it. The truth of the matter is that he is saying that he has gone far enough and he does not have the stomach or the patience to go further. That is not a way to legislate or to do justice.
  If the noble Baroness, Lady Miller, looks at the new clause, she will see that it is couched in extremely moderate terms. The point that she makes about exceptional expenditure is covered by the fact that costs and losses can be recovered only where the expenses have been reasonably incurred. That means
  1414
  that if the actions of the forum enable the problem to be solved in some way and the other wonderful measures enable the problem to be solved, then there is no claim. It is only after all that has failed and losses and expenses have been incurred that this provision bites.
  It is extremely difficult to see that a concern for the human rights convention would enable one to come to the conclusion that if all other measures fail and losses are still incurred, there should not be this modest, carefully and narrowly-drawn provision for meeting those costs and expenses. Therefore I hope that your Lordships will join us in the Division Lobbies in support of adding an element of justice to what is already provided. I hope that the Minister will not feel that because he has met some concerns, he should resist others, provided that those concerns are legitimate and moderately couched.
  6.13 p.m.
  On Question, Whether the said amendment (No. 80) shall be agreed to?
  Their Lordships divided: Contents, 123; Not-Contents, 159.

  Division No. 2

  CONTENTS

  Allenby of Megiddo, V.

  Forsyth of Drumlean, L.

  Anelay of St Johns, B.

  Fraser of Carmyllie, L.

  Astor of Hever, L.

  Gardner of Parkes, B.

  Attlee, E.

  Geddes, L.

  Baker of Dorking, L.

  Glenarthur, L.

  Blaker, L.

  Glentoran, L.

  Blatch, B.

  Goschen, V.

  Bledisloe, V.[Teller]

  Gray of Contin, L.

  Boardman, L.

  Greenway, L.

  Bridges, L.

  Hanham, B.

  Brightman, L.

  Harris of High Cross, L.

  Brittan of Spennithorne, L. [Teller]

  Hayhoe, L.

  Henley, L.

  Brookeborough, V.

  Higgins, L.

  Burnham, L.

  Hogg, B.

  Buxton of Alsa, L.

  Howe, E.

  Byford, B.

  Howell of Guildford, L.

  Caithness, E.

  Hunt of Wirral, L.

  Campbell of Alloway, L.

  Jopling, L.

  Carlisle of Bucklow, L.

  Kimball, L.

  Carnarvon, E.

  Kingsland, L.

  Carnegy of Lour, B.

  Knight of Collingtree, B.

  Chadlington, L.

  Listowel, E.

  Clark of Kempston, L.

  Luke, L.

  Coe, L.

  Lyell, L.

  Colville of Culross, V.

  Mackay of Ardbrecknish, L.

  Colwyn, L.

  Mancroft, L.

  Cope of Berkeley, L.

  Mar, C.

  Craig of Radley, L.

  Marlesford, L.

  Cranborne, V.

  Mayhew of Twysden, L.

  Crickhowell, L.

  Molyneaux of Killead, L.

  Dacre of Glanton, L.

  Monro of Langholm, L.

  Darcy de Knayth, B.

  Monson, L.

  Dean of Harptree, L.

  Moynihan, L.

  Denham, L.

  Murton of Lindisfarne, L.

  Dixon-Smith. L.

  Naseby, L.

  Eccles of Moulton, B.

  Noakes, B.

  Eden of Winton, L.

  Northbourne, L.

  Elton, L.

  Northbrook, L.

  Flather, B.

  Northesk, E.

  Fookes, B.

  Norton of Louth, L.

  1415

  O'Cathain, B.

  Shaw of Northstead, L.

  Onslow, E.

  Simon of Glaisdale, L.

  Oppenheim-Barnes, B.

  Skelmersdale, L.

  Oxfuird, V.

  Stewartby, L.

  Palmer, L.

  Stodart of Leaston, L.

  Park of Monmouth, B.

  Strange, B.

  Parkinson, L.

  Strathclyde, L.

  Pearson of Rannoch, L.

  Swinfen, L.

  Peel, E.

  Tebbit, L.

  Peyton of Yeovil, L.

  Tugendhat, L.

  Plummer of St. Marylebone, L.

  Vinson, L.

  Rawlings, B.

  Vivian, L.

  Reay, L.

  Waddington, L.

  Renton, L.

  Wade of Chorlton, L.

  Roberts of Conwy, L.

  Walker of Worcester, L.

  Rotherwick, L.

  Walpole, L.

  Ryder of Wensum, L.

  Warnock, B.

  Seccombe, B.

  Weatherill, L.

  Selborne, E.

  Wilcox, B.

  Selsdon, L.

  Williamson of Horton, L.

  Sharpies, B.

  Young, B.

  NOT-CONTENTS

  Acton, L.

  Geraint, L.

  Addington, L.

  Gilbert, L.

  Ahmed, L.

  Gladwin of Clee, L.

  Alton of Liverpool, L.

  Goldsmith, L.

  Amos, B.

  Goodhart, L.

  Andrews, B.

  Gordon of Strathblane, L.

  Ashley of Stoke, L.

  Goudie, B.

  Bach, L.

  Gould of Potternewton, B.

  Barker, B.

  Graham of Edmonton, L.

  Barnett, L.

  Greaves, L.

  Bassam of Brighton, L.

  Gregson, L.

  Berkeley, L.

  Grenfell, L.

  Bernstein of Craigweil, L.

  Hardy of Wath, L.

  Billingham, B.

  Harris of Greenwich, L.

  Blease, L.

  Harris of Haringey, L.

  Borrie, L.

  Harris of Richmond, B.

  Brennan, L

  Harrison, L.

  Brett, L.

  Haskel, L.

  Brooke of Alverthorpe, L.

  Hayman, B.

  Brookman, L.

  Hollis of Heigham, B.

  Brooks of Tremorfa, L.

  Howells of St. Davids, B.

  Burlison, L.

  Howie of Troon, L.

  Carter, L.[Teller]

  Hoyle, L.

  Chandos, V.

  Hughes of Woodside, L.

  Christopher, L.

  Hunt of Chesterton, L.

  Clarke of Hampstead, L.

  Hunt of Kings Heath, L.

  Clement-Jones, L.

  Irvine of Lairg, L. (Lord Chancellor)

  Clinton-Davis, L.

  Cocks of Hartcliffe, L.

  Islwyn, L.

  Cohen of Pimlico, B.

  Janner of Braunstone, L.

  Crawley, B.

  Jay of Paddington, B. (Lord Privy Seal)

  David, B.

  Davies of Coity, L.

  Jenkins of Putney, L.

  Davies of Oldham, L.

  King of West Bromwich, L.

  Dean of Thornton-le-Fylde, B.

  Lea of Crondall, L.

  Desai, L.

  Lester of Herne Hill, L.

  Dholakia, L.

  Linklater of Butterstone, B.

  Dixon, L.

  Lipsey, L.

  Donoughue, L.

  Lockwood, B.

  Dormand of Easington, L.

  Lofthouse of Pontefract, L.

  Dubs, L.

  McCarthy, L.

  Elder, L.

  Macdonald of Tradeston, L.

  Evans of Parkside, L.

  McIntosh of Haringey, L. [Teller]

  Evans of Temple Guiting, L.

  Ezra, L.

  McIntosh of Hudnall, B.

  Falconer of Thoroton, L.

  MacKenzie of Culkein, L.

  Falkland, V.

  Mackenzie of Framwellgate, L

  Farrington of Ribbleton, B.

  McNally, L.

  Faulkner of Worcester, L.

  Maddock, B.

  Filkin, L.

  Mar and Kellie, E.

  Fitt, L.

  Mason of Barnsley, L.

  Gale, B.

  Methuen, L.

  1416

  Miller of Chilthorne Domer, B.

  Sheppard of Liverpool, L.

  Mitchell, L.

  Shutt of Greetland, L.

  Molloy, L.

  Simon, V.

  Morris of Castle Morris, L.

  Smith of Gilmorehill, B.

  Newby, L.

  Smith of Leigh, L.

  Nicol, B.

  Stone of Blackheath, L.

  Northover, B.

  Strabolgi, L.

  Orme, L.

  Taverne, L.

  Parekh, L.

  Taylor of Blackburn, L.

  Patel, L.

  Thomson of Monifieth, L.

  Patel of Blackburn, L.

  Thornton, B.

  Phillips of Sudbury, L.

  Tomlinson, L.

  Plant of Highfield, L.

  Tope, L.

  Prys-Davies, L.

  Tordoff, L.

  Ramsay of Cartvale, B.

  Turnberg, L.

  Razzall, L.

  Turner of Camden, B.

  Rea, L.

  Walker of Doncaster, L.

  Redesdale, L.

  Wallace of Saltaire, L.

  Rendell of Babergh, B.

  Walmsley, B.

  Rennard, L.

  Warner, L.

  Richard, L.

  Warwick of Undercliffe, B.

  Rodgers of Quarry Bank, L.

  Whitaker, B.

  Rogers of Riverside, L.

  Whitty, L.

  Roper, L.

  Wilkins, B.

  Russell, E.

  Williams of Elvel, L.

  Sandberg, L.

  Williams of Mostyn, L.

  Scotland of Asthal, B.

  Winston, L.

  Sharp of Guildford, B.

  Woolmer of Leeds, L.

  Shepherd, L.

  Young of Old Scone, B.

  Resolved in the negative, and amendment disagreed to accordingly.
  6.24 p.m.
  Clause 14 [Offence of displaying on access land notices deterring public use]:
  [Amendment No. 81 not moved.]
  Clause 16 [Dedication of land as access land]:
  [Amendment No. 82 not moved.]
  Baroness Fookes Baroness Fookes moved Amendment No. 83:
  After Clause 16, insert the following new clause—

  POWER TO CARRY OUT REMEDIAL WORKS
  (" . —(1) Where any land which is open country is overgrown to the extent that its condition is likely to deter the use of that land by any person for the purposes of open air recreation, a competent authority may carry out such remedial work on that land as it considers necessary or expedient to restore that land to a condition suitable for such use.
  (2) In the exercise of the power conferred by subsection (1), a duly authorised officer of a competent authority may enter on the land and may take with him such vehicles, machinery and other equipment as may be requisite.
  (3) Before entering on any land, a competent authority shall give the owner of the land not less than twenty-four hours notice of their intention to do so or, where it is not practicable to ascertain the name and address of the owner, shall affix a notice at a conspicuous position at the boundary of that land.
  (4) A notice under subsection (3) shall specify—

  (a) the land to which it relates;

  (b) the work to be carried out; and

  (c) the date and time when the power to enter on the land will be exercised.

  (5) A competent authority may recover from the owner of any land the amount of any expenses reasonably incurred by the authority in carrying out works on that land to the extent that the owner has received or is entitled to receive any grant or other money from public funds for such works.
  (6) The power under subsection (1) shall not be exercised in respect of the same land by any competent authority more than once in any period of five years.
  (7) In this section "competent authority" means a local authority or—

  (a) in respect of land in England, the Countryside Agency; and

  (b) in respect of land in Wales, the Countryside Council for Wales.").

  The noble Baroness said: My Lords, Amendment No. 83 is tabled in my name. The new clause seeks to deal with a problem that I hope would not be a common one, but nevertheless is difficult and not easily resolved. I refer to the position where access land becomes overgrown to the point where those who have the right of access cannot, in practice, use it. In other words, the land would have to be in a very bad state indeed.
  If that point was reached, as far as I can see in the Bill as it stands, no redress is possible. If that is not the case, I should be glad to be advised. I am not imputing to any landowner any malicious or evil intent in that regard. There may well be perfectly understandable reasons why the land goes to pot. However, if that does arise, there is the practical difficulty of resolving it.
  The suggestion is that, having given proper notice, competent authorities—that is, local authorities, the Countryside Agency or the equivalent body in Wales—would be allowed to move in and deal with the land in the appropriate fashion, whatever that might be. It has been suggested to me that this is a draconian type of power. However, I suggest that it would not need to be used often. In any case, there are certain brakes on the procedure: first, through the competent authorities which are not likely to move in an unreasonable way; secondly, notice has to be given; and, thirdly, one cannot go onto the same land over and over again. There is a five-year limit on the time when one might enter the land for the purpose of clearing it.
  After listening to the debates on the local access fora—or, as I believe we now must call them, forums—it occurred to me that if people are still concerned, that might be an additional filter. It might be useful to place before them for consideration the problem of neglected land before the procedure which I outline kicks in. Obviously, that cannot be done now. However, if the Government were minded to accept the purpose of the clause in principle, I have no doubt that that could be amended at a later stage.
  The amendment attempts to deal with the problem of neglected land where it prevents those who have the right of access from so doing. In that spirit, I beg to move.
  Baroness Nicol: My Lords, I see the point of the amendment moved by the noble Baroness. However, I have one concern. The land to which she refers as "neglected land" could, in the mean time, have developed considerable conservation value. There is nothing in the amendment which would protect that value. If the land has developed its value to such an extent that it becomes a site of special scientific
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  interest, there is not a problem because the rest of the Bill looks after it. However, if it has simply become valuable in terms of its local biodiversity and therefore needs to be at least considered before it is destroyed, I would be worried that her amendment would prevent that happening. Apart from that, I can see what the noble Baroness is aiming at. In essence, I approve of what she is trying to do.
  Baroness Carnegy of Lour: My Lords, can my noble friend tell us what she means by "overgrown"? Does she mean, for example, bracken? Very often that is combined with the sort of circumstances to which the noble Baroness, Lady Nicol, referred. Is she thinking of bracken or scrub of some kind? I would have thought that those are the kind of conditions which ramblers would enjoy. That is part of the fun of rambling. I cannot understand the concern of those who suggest that the amendment is important.
  6.30 p.m.
  Baroness Young of Old Scone: My Lords, I add my concerns to those of my noble friend Lady Nicol. I can understand the purpose behind the amendment but feel that it is rather too wholesale in its application.
  The sorts of powers described to clear overgrown land are fairly unfettered. Scrubbing up of land is not always a bad thing. Scrub is a natural part of the landscape and may well be enjoyed by walkers. Areas of scrub, tall herbs and young trees are developed when grazing is reduced and it is often very good for birds. It provides shelter and food sources for butterflies and other invertebrates. I would be concerned that the wholesale powers to clean up scrub could well go beyond what is the intent of the amendment, which is simply to clear paths for access. That could be interpreted to mean the wholesale tidying up of access land, which could be had for the diversity of the landscape and the wildlife it contains. It is a tenet that is true, and often misunderstood, that tidiness in the countryside is almost always a vice and not a virtue.
  Lord Bridges: My Lords, can the noble Baroness explain what is meant by the phrase, "a competent authority"? It seems to be somewhat imprecise. I can imagine circumstances in which there might be more than one authority which thought itself competent to deal with such a matter.
  Lord McIntosh of Haringey: My Lords, I have limited sympathy with this amendment, to the extent that, as a child, I used to get scratched and have my clothes torn by going through scrub. My children have done it too and I confess that there have been times when I have done it as a grown-up. But that is part of being in the countryside. I would not like our countryside to be cleaned up too much. What is the fun of picking brambles unless one gets scratched at times; indeed, would there be any brambles if the scrub of which they are part was destroyed?
  Although the amendment is clearly well meant and has been carefully thought out, it produces too many difficulties. We have been at pains to reassure

  1419
  landowners and farmers that the right of access will not interfere with their freedom to manage the land, subject to existing constraints. But this amendment would interfere with that freedom. It would not place any burden on landowners. But it would give local authorities the power to say, "We believe your land management is interfering with public access and intend to do something about it". There is a hint of the municipal park in that which does not make me happy.
  Of course, lack of active land management is a bad thing. But that does not mean that land management has to be universal all over the landowner's land. My noble friends Lady Nicol and Lady Young made the point about conservation of wildlife. I agree with that point and do not need to repeat it. I just do not believe it is right for local authorities to interfere with matters like this and I hope that the noble Baroness, Lady Fookes, on reflection, will think so as well.
  Baroness Fookes: My Lords, I am sorry that this amendment met such a lukewarm, if not hostile, response. But I shall take it as friendly criticism. I have no intention of creating municipal parks. I enjoy the countryside sufficiently to know that brambles and bracken are desirable rather than otherwise.
  As I indicated at the beginning, I am concerned with the small minority of cases where the countryside is overgrown to such an extent that it is impossible to walk. It was only in those circumstances that I wanted this clause to bite.
  I was asked who the competent authority would be. It is set out in the amendment that it would be a local authority, the Countryside Agency, or the Countryside Council for Wales. I would hope that at least the Countryside Agency could be absolved from any desire to sanitise or make municipal parks out of the natural countryside. However, I suggested that if people were unhappy about the nature of the powers in the amendment, it might be possible to use the local access forum before any decision is made. That is not in the amendment as it stands because I was not thinking about those forums at the time. But that might provide the kind of break which noble Lords would consider salutary.
  I hoped to receive a more enthusiastic response. I must read the debate and see whether or not I can obtain further support. I doubt it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Earl of Caithness The Earl of Caithness moved Amendment No. 84:
  After Clause 16, insert the following new clause—

  POWER TO CARRY OUT REMEDIAL WORKS

    Visitor Management facilities
    VISITOR MANAGEMENT FACILITIES.
    . —(1) Where access to access land gives rise to a need for the provision of new or improved visitor management facilities there shall be a duty on the access authority to provide funding for the provision and maintenance of the facility.
    (2) Where agreement on the need for such facilities or the cost of providing them cannot be achieved, the parties shall have resort to a dispute resolution process prescribed by the Secretary of State.").
    The noble Earl said: My Lords, we come back to touch in a more limited way on extra costs that might be imposed upon owners and occupiers. The Government reassured us from time to time and, when discussing Amendment No. 80, the noble Lord, Lord Whitty, said, "Substantial costs will not arise" and "landlords will not be required to spend money as a result of the provisions of this Bill".
    In the debate on Amendment No. 72 I commented on the points raised by my noble friend Lord Peel and the extra costs of fencing in and signing the mines that were at the moment open—those pre-1872. The noble Lord, Lord Whitty, said at that time that there would be help with finances. But that does not appear on the face of the Bill.
    My particular concern relates to what are termed "visitor management facilities". If the situation arises where it is clear that something is required in order to facilitate access to an area in a sensible and measured way but the access authority does not spend the money there will be a mess. For instance, there might be a mass of cars at the side of the road instead of being properly co-ordinated and parked; there may be a lack of signage in order to help people to find the areas where they can be provided with information such as the best route from where they parked their car.
    So the purpose of Amendment No. 84 is to say that there "shall" be a duty on the access authority to provide funding in the event of a need for a visitor management facility. I included a second clause which provides that, if there is a dispute—this might arise between the landlord and the access authority—then it should be resolved by the Secretary of State. The amendment therefore is designed to help in a potentially difficult situation and should benefit those who wish to have access to the countryside as well as the owners and occupiers. I beg to move.
    Baroness Miller of Chilthorne Domer: My Lords, we agree with the aim of Amendment No. 84 in seeking to provide adequate visitor facilities. But we do not agree that the duty should always lie on the access authorities. First, as I mentioned in Committee, it is frequently the local pub which provides many of the facilities such as toilet blocks and car parks and relies on the trade from them. Secondly, the provision may be subject to other sorts of partnership.
    Therefore, while I cannot support the amendment, I agree that access authorities need to take seriously their obligations in ensuring that there are visitor management facilities, perhaps by helping people to bid for funding to enhance their facilities or in drawing together public/private partnerships. So the aim is worthy, but we cannot support the amendment.
    Baroness Farrington of Ribbleton: My Lords, the Government are in full agreement with those who wish to see facilities provided where they are needed to help manage the right of access for the benefit of walkers and land managers alike. We also agree that landowners should not generally be obliged to pay for such facilities. As was explained in Committee, the Bill already allows for facilities to be provided at

    1421
    taxpayers' expense; for example, as information points under Clause 19 or means of access land under Chapter II.
    It is fair to say that the Bill allows for the possibility that an access authority may seek a contribution from a landowner in respect of an agreement to create or improve a means of access. The means is simple: there may be occasions when the landowner or farmer may benefit just as much as walkers from the provision of facilities. Or perhaps the access authority has offered to install a stile but the farmer would prefer a more expensive new gate. It could be agreed that the authority contributes, for example, the equivalent of the cost of the stile and the landowner contributes the additional amount in order to ensure that he acquires the suitable facility.
    However, the key point is that there is no requirement for a landowner to pay towards the cost of facilities. If it is not possible to conclude an agreement between the landowner and the authority, the authority will have the power to carry out specified works at its own expense. Here, the landowner will not be required to pay a penny.
    We would be fearful of opening the way for costly and bureaucratic disputes by imposing a duty on access authorities to provide new visitor management facilities "where they are needed". We believe that access authorities will have the necessary knowledge and expertise to decide where facilities are needed and the Bill already allows them to do that. The best way forward is open, constructive negotiation with those having an interest in the land and on the basis of discussion with others concerned, including the local access forum. Landowners will, in any case, be free to make representations to their local authority—or, indeed, to the local access forum—about where they believe facilities are needed and the form they should take.
    Perhaps I may add a note of caution about the number and type of facilities that are appropriate to open countryside. We would caution against a sea of car parks and visitor centres. Major new facilities of that nature are unlikely to be needed often but there may be places, particularly near towns, where the landowner wants to be involved in the provision of a car park which could be a commercial venture allied to other facilities.
    The facilities which are likely to be commonly needed—for example, stiles, gates and notices—are catered for under Clause 19 and Chapter III of the Bill. I can assure the noble Earl, Lord Caithness, that the new clause is not necessary and I hope that he will not feel it necessary to press his amendment.
    Baroness Byford: My Lords, perhaps I may ask the Minister a question before she sits down. She said that there was no requirement on landowners to bear the cost. Can she direct me to that provision in the Bill? It may be that I am not looking in the right place.
    Baroness Farrington of Ribbleton: My Lords, at no point does the Bill impose a duty on the landowner to
    1422
    provide facilities. It is not possible to point to a place in the Bill because there is no such requirement on the landowner.
    The Earl of Caithness: My Lords, I am grateful to the Minister for her reply. There is common ground between us. I tabled my amendment in order to ascertain what happens when a facility is clearly required but the access authority does not have the money. The access authority could well agree with the landowner, saying, "We could not agree more. Something needs to be done but we have no money because we decided to spend it on social security care and so on. It is too bad for those who want access to that piece of land. They will have to put up with the situation and so will you".
    The Minister slightly misunderstood my point. The purpose behind my amendment is to force the access authority to do something. I take issue with her on a point, also made in Committee, that car parks can become commercial ventures. That is so only in very limited circumstances. By and large, car parks providing access are not paying ventures. They generally cost money to run either because someone must be paid to collect the money or because meters have to be provided. Alternatively, they must be free of charge.
    I hope that the Government will ensure that the access authorities provide such facilities because they will be needed. I agree that there will not be a plethora of them—no one wants that in the countryside—but only when they are badly needed will the access authority act and spend the money. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    6.45 p.m.
    Clause 17 [Byelaws]:
    The Earl of Caithness The Earl of Caithness moved Amendment No. 85:
    Clause 17, page 10, line 10, at beginning insert—
    ("( ) The appropriate countryside body shall issue draft model byelaws which access authorities may adapt to take account of differing local circumstances.").
    The noble Earl said: My Lords, we return to model by-laws. It is another amendment which the Left wing of the Labour Party—I am sorry, the Liberal Democrats—will meet half way but never the whole way. They will sit on the fence and say, "We quite like what you are saying but we are not going to do anything about it".
    There should be draft model by-laws and I have taken on board what was said in Committee. I believe that the countryside body should issue national by-laws which give certainty to owners and occupiers and to those who want access to the country. I beg to move.
    Baroness Byford: My Lords, I support the amendment and wish to speak to my Amendments Nos. 86 and 90. Amendment No. 86 ensures that under by-laws walkers do not interfere with the rights of owners and occupiers in managing and enjoying their own land. We believe that that is most important.

    1423
    By omitting that requirement it might be argued that owners and occupiers are not specifically covered, except in so far as they are "other persons" referred to in the Bill. That is manifestly not the case because owners and occupiers have rights of ownership or tenancy over the land, entitling them to do things which walkers are not able to do.
    Secondly, the point should be made that owners and occupiers have no fewer rights over the land than walkers. After a suitable interval, most people have a long holiday period. Many have five weeks plus statutory days, making 36 days in all. Under the Bill, the Government propose to allow owners and occupiers only 28 days in total, with no statutory days. An amendment recently moved would allow for Saturdays. We believe that we should allow owners and occupiers at least the right to a by-law to protect enjoyment of their own land in their own way.
    I turn to Amendment No. 90, which I hope the Minister will accept because the Government have previously made suggestions about parishes. Much of the land over which open access will be granted is remote from large towns which tend to house the seat of local government. Parish councils can be miles away from the district offices. Unless parish councils can enforce by-laws the procedure for following up infringements will be long-winded and costly, and there is a danger that many will go by the board. That will lead to a growing awareness that the law is weak, and certain persons and interests may be tempted to take advantage of the situation.
    By and large, people who live in urban areas do not suffer to the same extent as those who live in more rural areas. I refer to the practice of fly-tipping lorry loads of rubbish across gateways and minor roads and the disposal of litter, to which we shall return in later amendments. If those who live in urban areas find an intruder in their home the nearest policeman is likely to be only a couple of miles or just a few minutes away. For that precise reason, in the countryside an intruder is much more likely to finish his self-appointed task than to run for it immediately, knowing full well that the police will not be quickly at hand.
    A parish council is much more immediate than a district authority. If circumstances require urgent attention the council can be convened in days, and for that reason we have tabled Amendment No. 90 which seeks to include a parish council.
    Baroness Miller of Chilthorne Domer: My Lords, I am sorry that the noble Earl, Lord Caithness, believes that we have been sitting on the fence. We have voted vigorously on all amendments.
    The Earl of Caithness: Always with the Labour Party!
    Baroness Miller of Chilthorne Domer: My Lords, we have always voted according to our beliefs.
    1424
    I turn to Amendment No. 85 which was debated at length in Committee. We agreed then that model by-laws were important. Clause 17(3) makes plain that the access authority must consult the appropriate countryside body. We are pleased that, with the addition of Amendment No. 87 which has already been spoken to by the Government, the local access forum must also be consulted. We believe that that is particularly important when model by-laws are adapted to take account of differing circumstances.
    I have no particular qualms about supporting the noble Earl's amendment, but I do not want him to believe that he has forced me into it. I am not sure that the amendment adds a great deal to what is already on the face of the Bill, but for what it is worth it appears to be a worthy amendment.
    I understand the purpose of the amendment in the name of the noble Baroness, Lady Byford. Perhaps the remoter parishes should have power to enforce by-laws. From my experience, the difficulty is that some parishes do not want that responsibility. However, the amendment says "may enforce" and the responsibility can be left to the county or district council. Therefore, I believe that that is a perfectly reasonable request.
    Lord Hardy of Wath: My Lords, I refer briefly to Amendment No. 88 in my name. I have tabled this amendment in order to make a suggestion to the Government. Earlier in our debate today my noble friend Lady Mallalieu said, quite properly, that the public would be given rights which they had not previously held. The problem is that sometimes the public may not accurately perceive what those rights are. There is at least the possibility that the public will assume that the present regulations which govern public rights of way are to be relaxed under by-laws. However, public rights of way—certainly footpaths—may be seriously damaged if a relaxed attitude is taken to them. A public footpath is for people to walk and the Bill is designed to extend access to people on foot.
    Unfortunately, in many parts of the country people use wheeled vehicles on footpaths. I am strongly in favour of the provision of an adequate network of bridlepaths, but in areas where they are not in abundance some people take their horses on footpaths. In that event, particularly following weather of the kind that we are now experiencing, footpaths may be virtually impassable except by a young athlete. If we are to promote exercise, good health and so on, it is necessary to remind people that when the Bill becomes law the regulations which govern public rights of way should continue to specify that public footpaths are for people on foot and that bridlepaths are for people on horses; and I am not sure that wheeled vehicles should be used on either of them.
    I hope the Government ensure that there is no public misunderstanding. For that reason, my amendment seeks to insert the words,
    "by those acting in accordance with the nature of the right".

    1425
    I shall not press the amendment. However, the Government would be wise to take careful note of the need, which I hope I have addressed in my brief remarks, to provide clear and positive advice to the public when the Bill is enacted.
    Baroness Young of Old Scone: My Lords, I should like to touch briefly on Amendment No. 85. These days my heart sinks when I hear the word "by-law". The making of by-laws under the Local Government Act procedures is tortuous in the extreme. It involves consultation with anyone with any interest whatever in the site, which can range from individuals, parish and district councils, statutory undertakers and Uncle Torn Cobbley and all. With a favourable wind, it takes a minimum of about six months, and often longer. Amendment No. 85, which is concerned with model by-laws, has merit in that anything that helps to take the pain out of the process should he supported. I am not sure, however, that it needs to be on the face of the Bill; it should perhaps merely be an admonition to the Countryside Agency.
    Lord McIntosh of Haringey: My Lords, first I refer to government Amendments Nos. 89 and 262 which are in this group. We gave a commitment during Committee to table an amendment which would enable access authorities to make by-laws in advance of the right coming into force. These amendments fulfil that commitment. Amendment No. 89 means that by-laws can be made when land is likely to become access land, but the Secretary of State may not confirm them until the land is access land. Amendment No. 262 provides that Clause 17 comes into force two months after Royal Assent.
    As to by-laws, I have some sympathy for the observations of my noble friend Lady Young. We do not believe that access authorities should adopt a blanket approach to by-laws. By-laws should be made in response to particular problems which need to be addressed with a criminal penalty. Authorities are unlikely to know in advance whether any activities will cause problems, but we accept that there may be some cases, such as on land where there is already significant de facto access, where the authority sees a need for by-laws. Our amendments will enable by-laws to be made in those circumstances.
    I turn to Amendment No. 85. My noble friend Lord Whitty explained in Committee that the countryside bodies were already under a duty, as a result of a government amendment at Report stage in another place, to provide guidance to access authorities about the exercise of their by-law making powers. Those recommendations are likely to include advice about where by-laws may be appropriate or useful, and, once confirmed, how they may best be publicised. We recognise that model by-laws can be a useful way to provide those guidelines. If experience shows that by-laws are needed in a significant number of areas—in other words, where the model is sufficiently widespread—the Secretary of State will consider whether it is helpful to issue model by-laws.
    1426
    We accept that model by-laws can be helpful to local authorities. As my noble friend Lady Young says, they may cut short the consultation and planning stage. We shall be very ready to provide them if it becomes apparent that they are necessary and once we know what they are likely to cover. Therefore, one says without any sense of antagonism to Amendment No. 85 that one should let the countryside bodies issue the guidance and see whether it is sufficiently generalised to justify model by-laws. If so, not only would there be no objection to the Secretary of State making model by-laws—with the legal resources available to him, it would be a matter for him rather than the countryside bodies—but we believe that it would be a positively good idea. We just do not want to do it in blanket form.
    Amendment No. 86, in the name of the noble Baroness, Lady Byford, would add that by-laws may be made to secure that those exercising the right of access do not interfere with the enjoyment of the land by the "owner or occupier". I can give the noble Baroness a categoric assurance that Clause 17(1)(c), which refers to the,
    "enjoyment of the land by other persons",
    already provides for that. In other words, owners and occupiers are among those other persons. I hope the amendment will not be pressed.
    I turn to Amendment No. 90. I declare an interest as a former chairman of the Association for Neighbourhood Councils, which unsuccessfully sought to persuade governments of all parties to extend parish councils to the urban areas of England. There are no parish councils in urban areas. Parish councils, both in urban areas and in rural areas, should have this power. We are happy to accept Amendment No. 90.
    Perhaps I may return to Amendment No. 88. The assurance that the noble Lord, Lord Hardy, seeks is that there should be no relaxation of the restrictions on rights of way, which he so graphically described. It is not necessary to clarify the phrase by adding that it applies only to those who are exercising the right of way in accordance with the nature of that right. The exercise of right of way means the lawful exercise of right of way. For example, it would not protect anyone unlawfully driving a vehicle on a footpath or bridleway. I believe that that is the noble Lord's concern. I hope that on that basis he will not press his amendment.
    7 p.m.
    The Earl of Caithness: My Lords, I thought that the noble Lord, Lord McIntosh of Haringey, was going to accept my amendment. I really thought that I had persuaded him because we were so very close. Rather than leaving the decision to the Secretary of State—in the fullness of time, when he has been able to consider it—whether by-laws should be issued, it is important that on the face of the Bill it is stated that it is the duty of the Countryside Agency to provide the model

    1427
    by-laws. It is for the various authorities to adapt and adopt them to take account of differing local circumstances.
    Lord McIntosh of Haringey: My Lords, we are very close on this matter. I do not believe that there is a difference in substance. Perhaps we may talk about the matter between now and the next stage of the Bill.
    The Earl of Caithness: My Lords, this is too good. I have had an offer from the noble Baroness, Lady Miller of Chilthorne Domer, to come and vote with me. Now the noble Lord, Lord McIntosh, has offered to think about the issue. It is really too good an opportunity. I should be very happy to take up the noble Lord's offer. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    [Amendment No. 86 not moved.]
    Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 87:
    Clause 17, page 10, line 20, at end insert (", and
    (b) any local access forum established for an area to which the byelaws relate").
    On Question, amendment agreed to.
    [Amendment No. 88 not moved.]
    Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 89:
    Clause 17, page 10, line 36, at end insert—
    ("(6A) Byelaws under this section relating to any land—

    (a) may not be made unless the land is access land or the access authority are satisfied that it is likely to become access land, and

    (b) may not be confirmed unless the land is access land.").

    On Question, amendment agreed to.
    Baroness Byford Baroness Byford moved Amendment No. 90:
    Clause 17, page 10, line 39, after ("district") insert ("or parish").
    The noble Baroness said: My Lords, I thank the Government for accepting my amendments. We were very pleased that the Government tabled Amendment No. 89. Perhaps I may say to the Minister that I understand parish councils are being established in urban areas. I, too, am delighted about that. I beg to move.
    On Question, amendment agreed to.
    Clause 18 [Wardens:]
    The Deputy Speaker (Lord Methuen): My Lords, in calling Amendment No. 91, I should say that if that amendment is agreed to, I cannot call Amendments Nos. 92 and 93.
    Viscount Bledisloe Viscount Bledisloe moved Amendment No. 91:
    Clause 18, page 10, line 41, leave out from beginning to end of line 2 on page 11 and insert—
    ("(1) Every access authority and district council shall take such steps (whether by the appointment of wardens or otherwise) as appear to it to be necessary or expedient to achieve the purpose set out in subsection (2) as respects access land in their area.
    (2) The purposes referred to in subsection (1) are—").
    The noble Viscount said: My Lords, in Committee we had considerable debate about the need to ensure that there is proper wardening or supervision of some kind to ensure the right results. Clause 18(2) of the Bill provides various purposes for which wardens are to be appointed. The first is to secure compliance with by-laws and restrictions. As Clause 18(1) stands at the moment, an access authority has power—I emphasise power—to appoint wardens if necessary or expedient to achieve those objectives, but it does not have to so do. Therefore, one can have a situation where there are by-laws or restrictions which are not being complied with. The access authority may accept that some action, such as, let us say, the appointment of wardens is the only way to achieve compliance. But it can still decide not to take that action. It is wholly unacceptable that one could have a position where the rules were being disregarded and there was no obligation on the authority to do anything about it.
    The noble Lord, Lord Whitty, expressed good intentions. I have no doubt that in the initial stages after the Bill is enacted the Government will implement those intentions and seek to provide suitable wardening. But we do not know what will happen later when the first enthusiasm for the Act has gone, perhaps different persons are holding these offices and someone is searching for an economy. Those good intentions may lapse.
    If the Government are giving people the right to walk across private land, there has to be an obligation—not merely a power—to provide ways of securing compliance with the restrictions under which they go there.
    In Committee, the noble Baroness, Lady Miller of Chilthorne Domer, enunciated in forceful language that principle. But she pointed out that there might be ways of achieving the desired result without actually appointing wardens. My amendment is designed with great care to solve that problem by saying that the,
    "access authority …[or the] district council shall take such steps (whether by the appointment of wardens or otherwise) as appear to it to be necessary or expedient to achieve the purpose set out in subsection (2)".
    Thus, the authority has complete discretion to decide what steps, if any—I emphasise if any—are needed to ensure compliance. Only if the authority decides that something needs to be done and then decides what it should do for the best is it obliged to do it. It cannot duck the responsibility. I believe that the amendment covers all the points raised in Committee. Therefore, it should be acceptable to everyone. It achieves the aim that one cannot have a situation where there is no compliance, where everyone agrees that it is necessary to do something about the position but does nothing.
    Amendments Nos. 92 and 93 are on much the same lines. Amendment No. 91 seeks to give the access authority the widest possible discretion as to how to achieve the purpose. Therefore, it should appeal particularly to the noble Baroness, Lady Miller. I beg to move.
    Baroness Byford: My Lords, it is important that the amendment is accepted by the Government. Over the past 40 years attempts have been made to broaden access to the countryside. Those attempts have been fairly successful, despite the fact that many of the jobs given to local authorities, both under the 1949 and the 1981 Acts, have not been completed, not through any lack of desire but mainly for lack of adequate funding.
    I have serious concerns about the funding for the Bill, especially as I feel that a well trained and qualified warden force will be essential to ensure that its provisions are observed by walkers and others. Even now the Government could reduce the workload significantly by removing some of the demands which will inevitably result following the decision to allow dogs to roam freely on access land. As the noble Viscount mentioned, the amendment puts a duty on the authority to appoint wardens where it considers it is "necessary" or "expedient". I hope that the Government will have regard to those two words.
    The Local Government Association, which I am sure has written to many noble Lords, is particularly concerned about the funding of many aspects of the Bill. One such aspect is the provision of wardens. Perhaps I may quote from the Local Government Association's briefing:
    "There are significant costs associated with these provisions. Many of the key local authority costs will be discretionary (wardening, access infrastructure, information provision). But in our view it is this type of investment which will be key to the success of the Bill's objectives".
    I could not put it better.
    A number of individuals and well-known organisations have been in contact with Members of this House, particularly with regard to dogs. The wardening responsibilities in the Bill will reflect on dogs. During debates on earlier amendments we discussed the whole question of controlling dogs, particularly in areas such asthe Peak District National Park. We heard that dogs are kept on leads but are let off as soon as someone is around the corner. Difficulties then occur. As our debates have proceeded we have done our best to try to show the Government what needs to be done to ensure that the Bill works correctly. I do not know about other noble Lords but up to this point I certainly have had no communications asking me to support access for dogs. Indeed, there was no such proposal in the manifesto.
    Wardening is crucial to the success of the Bill. Last week the House decided that night-time access will not be banned. As a result people will be wandering around in the dark and may get into difficulties. We also have the spectre of dogs not being sufficiently restricted and the consequent damage to livestock, wild fowl and wildlife. It is important that we have
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    adequate wardening services. It should not be a matter of discretion. We believe that wardens should be appointed where it is necessary or expedient.
    The Bill provides no criminal sanction for trespass and few restrictions on dogs. There is no real statutory requirement for the appointment of wardens. We want people to enjoy the countryside but, sadly, as we have said in the debates on the Bill, there are those who will not have respect for the restrictions set out in the Bill. If we do not put on the face of the Bill a statutory responsibility for the provision of wardening services, the Bill's provisions will be unenforceable. In those circumstances, people who would like to enjoy the countryside will have some of their enjoyment spoilt. I hope that noble Lords on all sides of the House will support the amendments, which are crucial if the Bill is to work. I support the noble Viscount, Lord Bledisloe.
    Lord Hardy of Wath: My Lords, I am in favour of the appointment of wardens. I can think of a number of reasons for their appointment, one of which follows on from the comments of the noble Baroness. Lady Byford. I have already mentioned my honorary membership of the Kennel Club, although I should point out that I am expressing my own opinion and not, as far as I know, that of the club. I take the view that the proportion of responsible dog owners is much higher today than used to be the case. Last week I spelt out the reasons for that. Wardens could be useful in identifying, discouraging and deterring the minority of people who do not control their dogs properly. That would be a very good thing. It might persuade the Opposition Front Bench and the Government Front Bench that dogs are not necessarily vile and evil and that they are very good, not least in promoting human health. I would be a good deal less fit if I did not walk my dogs.
    I have one question for my noble friend the Minister. I trust that it will not be one he does not like. Last week I suggested that the owner or occupier should be able to give permission to a responsible dog owner to let his dog off the lead for the purposes of training. My noble friend said that there was no need for the amendment because the agreement of the owner or occupier could be given tacitly or otherwise. In a situation where the owner had been given tacit approval by the owner or occupier, the warden would have to be sure of the position before he became enraged by the owner letting loose his dog. Can my noble friend tell me how the warden should be informed that the dog owner has the tacit permission of the owner or occupier to train his dog to come when he lets if off the lead and to stay when it is so ordered?
    The Earl of Caithness: My Lords, I wish to speak to Amendment No. 92, which stands in my name. There is nothing I need add after what has been said today and what was said in Committee. Like the noble Viscount, Lord Bledisloe, I have rephrased the amendment to take account of comments made by noble Lords. I do not think that there is much between the noble Viscount's Amendment No. 91 and my

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    Amendment No. 92. I think that it is very courteous of us to give the Government a choice of which one to accept.
    Earl Peel: My Lords, perhaps I may offer the Minister another choice in speaking to Amendment No. 93, which stands in my name. When in Committee we discussed the issue of wardens, the Government seemed to be somewhat uncertain as to how they would resolve the matter. It was my impression that the Government were basically sympathetic to the principle of having wardens wherever it was desirable to have wardens but felt constrained by the likely financial implications. The argument was successfully made from all sides of the Chamber that if the authority considered it necessary or expedient to appoint wardens, it should be required to do so. It would be a dereliction of duty on behalf of the access authority to decide that wardens were needed and then not to appoint them.
    It is worth pointing out that wardens do not need to be employed full-time by the authority. They could be part-time or they could be volunteers. That could go some way towards reducing the resource implications. However, as my noble friend Lady Byford said, if the Bill is to work and we are to reduce conflict, wardens will have an extremely important role as the interface between those who wish to come on to the land and enjoy access and the owners and occupiers who are responsible for the management of that land. My amendment simply requires that an access authority must appoint wardens once it has determined how many are needed. It is somewhat unsatisfactory to give the access authority the duty to determine the number of wardens but then no duty to appoint them.
    Having said that, there is not a great deal between my amendment and the amendments of the noble Viscount, Lord Bledisloe, and my noble friend Lord Caithness. I would be happy with any of the amendments. I sincerely hope that the Government will look sympathetically on them.
    Lord Monro of Langholm: My Lords, I wish to make only a brief intervention. The warden system will be crucial to the impact of the Bill. We have heard about their training and so on. A warden's salary and the cost of any transport he will require will come to about £20,000 a year. But will access authorities be able to offer that kind of money? An access authority may need several wardens. If the power to appoint wardens is only discretionary, one can well see that a number of wardens will disappear like snow off a dike when the authority starts looking at the salary and transport implications of financing wardens, who will be crucial to the working of the Bill's provisions.
    Lord Rotherwick: My Lords, as a landowner and manager, I know full well that when one goes to employ someone on the land one tends to get a good person if that person comes to the job knowing that it is a long-term job. The personcoming to the job will probably end up thoroughly skilled and well trained.
    1432
    If the positions of wardens, whether they are part-time or full-time, are to be subject to annual budgetary reviews and thus become subject to other priorities within those budgets, then I foresee that those wardens on whom we would all wish to rely; namely, highly skilled and highly trained wardens, will probably not be forthcoming. They will apply only if they can be sure that their jobs will be long-term positions. I hope that the Minister will be able to move some way to deal with the concerns expressed by all noble Lords.
    Baroness Miller of Chilthorne Domer: My Lords, the noble Viscount, Lord Bledisloe, was correct to say that he has drafted his amendment very carefully. I can confirm that I find it more appealing than the other amendments which have been tabled in this grouping. The noble Viscount has taken care to leave in place sufficient flexibility to enable the access authority to choose ways other than the direct appointment of wardens to solve the problems that may arise.
    On these Benches, we believe that all the difficult issues on which we have held detailed discussions in Committee—night access, dogs and the enforcement of closures and restrictions—need to be managed. For that reason, I am pleased that the noble Viscount has been able to draft an amendment which provides enough flexibility for local authorities to choose how to put in place these necessary management tasks.
    The noble Baroness, Lady Byford, said that the amendment, to which she has added her name, imposed a duty on local authorities to appoint wardens. However, I do not believe that the amendment does that. It imposes a duty on the authorities to take the necessary steps to manage the land, and that is why I find it more attractive than the other amendments tabled on this issue.
    Access authorities operate under strict budgetary constraints and the ruling groups have to make difficult decisions at budget time. The fact that proper countryside management has already been practised by access authorities has, on occasion, been called into question by Members from all the Benches in this House. However, by putting it on to the face of the Bill, countryside management will become a valid reason for spending money. That duty will be extra to the duty of, for example, maintaining countryside roads. In the past, difficulties have arisen where countryside management has been perceived by the opposition party as an add-on—that may well have been the case as regards the county of which I am a member; namely, Somerset. Sometimes it is important to make it absolutely clear how essential is countryside management.
    I have only one extremely small caveat. Indeed, when the noble Viscount introduced his amendment he said,
    "Every access authority [or] district council",
    although his amendment refers to, "and district council". I query that only because I do not think that the county and national park and the district authority must take these steps. Much as we all agree on how necessary it will be to have wardens, that would

    1433
    represent something of an overkill. In these days of joint working and best value, I am sure that the access authority and district could agree between them the steps to be taken. I hope that the noble Viscount will accept that, when he spoke, he referred to "or". I feel that that would provide the better solution here. The matter should be settled by agreement between the different authorities.
    Lord McIntosh of Haringey: My Lords, this is a case somewhat similar to that of model by-laws. We all agree on the fundamentals of what we want, but there may be disagreements about how to achieve them. Let us see if we can explore those differences.
    Amendment No. 91 would require authorities, where they think it necessary or expedient, to appoint wardens or take other appropriate measures to achieve the purposes set out in subsection (2) of Clause 18. I should remind noble Lords that Clause 18(2) is subject to our Amendment No. 96 which has yet to be moved. The amendment will extend the scope of those purposes. As the noble Baroness, Lady Miller, pointed out, it would be a mistake to impose the duty on both access authorities and district councils. However, I do not think it would be sufficient only to refer to "or district councils". We shall need to go into the detail as regards agreements reached between the different authorities, which might be complicated. Nevertheless, as drafted, that is the scope of Amendment No. 91.
    Amendment No. 92 would require authorities to ensure that access land is wardened where necessary or expedient. Amendment No. 93 would place a duty on authorities to appoint such numbers of wardens as appear to be necessary or expedient. Our starting point has always been that we want to see authorities being able to use discretion when appointing wardens. Given the interventions that have been made around the House, it is clear that, while noble Lords recognise the value of discretion, they do not think that that discretion goes far enough. Amendment No. 91 would retain some discretion, but I have already explained the difficulties with it.
    Amendment No. 92 would retain a considerable amount of discretion. However, I fear that Amendment No. 93 would be considered by a court to require the appointment of at least some wardens. I do not think that that is what is wanted here. Clearly, certain district councils will have very little or even virtually no access land in their areas. Because of that, we could get into some difficulties with the wording of Amendment No. 93.
    Between now and Third Reading I should like to talk about this with all noble Lords who have spoken on this matter. At the risk of embarrassing the noble Earl, Lord Caithness, I have to say that, if we are to achieve something along these lines, I tend more towards Amendment No. 92 than to the other two amendments. However, I hope that, when we discuss model by-laws, we shall have a chance to talk about this matter at the same time. I do not think that any fundamental disagreement exists between us here. We all see the value of wardens. Indeed, the Government
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    would not have tabled their amendments to Clause 18 if the value of wardens was not clear. However, as matters stand, and given that the amendments are alternative rather than cumulative, I am not able to accept the wording in any of the amendments presently before the House.
    Viscount Bledisloe: My Lords, I am most grateful to all noble Lords who have spoken. I was interested to hear about the experience of the noble Lord, Lord Hardy of Wath; namely, that most dog owners are responsible. However, in the presence of the noble Viscount, Lord Cranborne, I must remind him that there are spaniels who do run in.
    The point behind our amendment is that wardens do not need to be full-time employees. Scope is offered for authorities to arrange matters as they like. The amendment does not seek to take away discretion from the authorities. They would have total discretion to do whatever they think is necessary or expedient. If they are considering only a small piece of land, they would be free to say that no warden was needed. Alternatively, they may decide that a part-time warden is required, and that the local farmer could be approached.
    The only point we wish to change is that, when authorities have decided what it is necessary to do, they cannot then say, "We know that this is necessary, but we're not going to do it".
    Lord McIntosh of Haringey: My Lords, I understand that point and I do not disagree with it. However, perhaps I may make a further point which is relevant to what the noble Viscount, Lord Bledisloe, is saying here about part-time or voluntary wardens. This refers back to a point I neglected to make in response to the noble Lord, Lord Monro. A power to fund wardens, as is being proposed by the Government, may be more effective than a duty. That is because a "duty" suggests that funds for wardening should be included as a part of the normal revenue support grant. We want to be flexible about this. We would not wish to rule out the option of setting up a specific grant regime to cater for wardening and other items associated with management. Indeed, it may he that a specific grant regime would result in more wardens. That, again, is a matter that I should like to consider in any discussions that we may hold with all noble Lords who have proposed and spoken to these amendments.
    Viscount Bledisloe: My Lords, I shall of course be delighted to take up the generous offer made by the noble Lord. I have no pride of authorship. If the noble Lord prefers the amendment tabled by the noble Earl, Lord Caithness, then the only difference between us is that the noble Baroness, Lady Miller, prefers the wording of my amendment. But I am sure that we can come to some compromise. Provided that the Minister is, as I understand he is, saying, "Yes, we will do this, but we have to find a nice, tidy way of doing it", on that basis I will be delighted to withdraw my amendment.
    Amendment, by leave, withdrawn.
    [Amendments Nos. 92 and 93 not moved.]
    Lord Whitty Lord Whitty moved Amendment No. 94:
    Clause 18, page 10, line 44, at end insert—
    ("(1A) As respects access land in an area for which there is a local access forum, an access authority shall, before they first exercise the power under subsection (1) and thereafter from time to time, consult the local access forum about the exercise of that power.").
    On Question, amendment agreed to.
    Baroness Farrington of Ribbleton: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.30 p.m.
    Moved accordingly, and, on Question, Motion agreed to.

Energy Act 1976 (Reserve Powers) Order 2000
7.30 p.m.
The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville)The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville) rose to move, That the order laid before the House on 12th September be approved [28th Report from the Joint Committee.]
The noble Lord said: My Lords, on 7th September protestors blockaded Stanlow refinery in Cheshire. The oil companies advised my department that action at other refineries could quickly lead to serious disruption of fuel supplies. As a consequence, the Government sought an Order in Council under Section 3 of the Energy Act 1976.
The Energy Act 1976 (Reserve Powers) Order 2000 was made by Her Majesty on Monday, 11th September and was laid on 12th September. The order came into force on 11th September, it being considered that the exceptional urgency of the situation justified the order coming into force before it had been laid. Were the House and another place to have approved the order, it would expire on 10th September 2001; that is, 12 months after it was made. Failing such approval, the order would expire at midnight on Sunday, 19th November.
Article 2 of the order declares that, because there is imminent in the United Kingdom a threatened emergency affecting fuel supplies which makes it necessary in Her Majesty's opinion that the Government should temporarily have at their disposal exceptional powers for controlling the sources and availability of energy, the powers of Sections 1 and 2 of the Energy Act 1976 are to be exercisable to their fullest extent. Those sections enable the Secretary of State to make orders and to give directions to regulate the production, supply and use of certain fuels, including petrol and diesel.
It was considered in September that it was necessary for the Government to have those powers at their disposal, given the serious threat to fuel supplies and hence to emergency and other essential services, to the
1436
health service and to food distribution. Using these powers, the Secretary of State subsequently made orders designating priority retail fuel sites and priority purposes to facilitate the orderly return to normal when protests ended. These arrangements would have ensured continuity of essential services for a longer period had the blockades continued.
While the order is in force the Secretary of State can, under Sections 1 and 2, regulate the production and supply of fuel and direct companies and others as to the use of petroleum products or the price at which they are sold. Examples of the orders and directions which the Government might want to issue would be directing petrol suppliers to supply only to specified locations and for priority purposes; or restricting private, commercial or public transport activity for the purpose of conserving supplies.
It may be helpful if I remind your Lordships about the Government's actions in response to the recent disruption. We made clear from the beginning that we were determined to ensure that supplies were returned to normal. As soon as it became apparent that supplies were being affected, we acted to ensure that procedures were put in place to allow for supplies to be brought back to normal as soon as possible.
Using the powers available under the Order in Council, the Secretary of State made further orders designating petrol stations and depots around the country as priority suppliers, requesting oil companies to ensure that available supplies were, in the first instance, used to keep these stations open. Subsequent orders added further petrol stations and depots to the list following representations from priority users, business and the public. From that list of petrol stations we additionally specified about 300 outlets which should service primarily essential users and we issued a list of essential users.
Although the powers under the Order in Council enabled us to issue legally-binding directions to this effect, we took the view that the arrangements should be non-statutory and handled on the ground by local authorities and the police, who were best placed to respond effectively to local circumstances. Guidance was placed on government websites and distributed through police stations, local authorities and health authorities. We also set up two hotlines so that essential users and members of the public could telephone for information.
The situation returned to normal, but to ensure that disruption on this scale was not repeated, the Prime Minister set up a task force which agreed the broad principles of a memorandum of understanding between government, oil companies and the police on the handling of any future emergency.
I mentioned the task force and the memorandum on 5th October in replying to a question from the noble Lord, Lord Campbell of Croy. In another place last week my right honourable friend the Home Secretary confirmed that the task force was putting in place measures aimed at ensuring, in the event of future disruption, the delivery of fuel to petrol stations, with priority for essential users; better preparation for

1437
disruption by local authorities and other essential users the availability of Ministry of Defence drivers to drive tankers as a last resort; the protection of food depots and other potential targets; and the keeping open of major roads.
I regret that we appear to be faced with threats of further disruption. We have no alternative but to seek extension of the exceptional powers so that we can take responsible action to safeguard essential services. The Government are in no doubt that it is necessary to have these powers available for some time to come in order to take the action necessary to preserve essential supplies and services. The Government are firmly of the view that a situation continues to exist in which there is a real threat of disruption to fuel supplies and that it is our responsibility to be prepared to act quickly to maintain essential services, particularly at this season of the year.
The Section of the Energy Act 1976 in question, Section 3, had not previously been activated. This was not something which we therefore did lightly. Careful thought was given before an order was sought in early September, and very careful thought has been given again to this issue. But it is our considered view that it is right and necessary to extend these powers. I beg to move.
Moved, That the order laid before the House on 12th September be approved [28th Report from the Joint Committee].—(Lord Sainsbury of Turville.)
The Earl of Mar and Kellie: My Lords, the order seeks powers under Sections 1 and 2 of the Energy Act 1976 in the aftermath of the September fuel blockades. I read about them—M the West Australian News. I therefore have no war stories to tell. However, I had to listen to Australians whingeing about their petrol going up to 38p. per litre. I concluded that Australians were lax on fuel use and on their commitment to reducing greenhouse gases.
On the face of it, Sections 1 and 2 seem to be largely written for the purposes of energy conservation and price control. However, reading Section 3, especially Section 3(1)(b), I see that it is more in line with the current situation of threatened disruption to fuel supplies. I understand that an Order in Council under Section 3 is in place and can last for 12 months.
All this has come about because of the blockades and the summer-long fuel price protest. So I have to ask why peaceful and legitimate protest and lobbying spilled over into unconstitutional blockades. I have to hope that the Government have taken all the necessary precautions to deal with the next blockade, if it occurs. That is quite an "if'.
I should like to think that the Government have by now listened to the protest and lobbying and that tomorrow the Chancellor will bring forward measures which will take the heat out of the issue. Should that not be the case, it will be necessary for the right balance to be struck between the right of peaceful protest and lobbying and the need for fuel to be delivered. The world's fourth largest economy needs to be kept on track. It falls to the Government to deal with the issues effectively and not to trigger off another blockade.
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We have heard about the training of military drivers and of company directors being reminded of their duty to deliver. Tanker drivers have also to consider the case for safety vis-é-vis blockades, provided that it is not a cover up for collusion.
The Minister is in an unfortunate position being unable, I presume, to give us a foretaste of the Chancellor's Statement tomorrow. I hope that action will be taken to reduce vehicle excise duty, which would be administratively easy to do. That would benefit rural areas where public transport is weak and, to an even greater extent, the remote areas and island groups, particularly in north-west Scotland. In these latter areas, the disproportionately high price of fuel has long demanded a reduction in vehicle excise duty in compensation just to bring motoring costs down to city and urban area levels. I also hope to hear about a measure to equalise the cost of cheaper fuel enjoyed by lorries operating in the United Kingdom and based in Europe.
This order will only be effective if the Government have met some of the demands of the protesters and have made real plans to overcome any blockade action which may still ensue.
Lord Mackay of Ardbrecknish: My Lord, I am slightly surprised that the Minister was able to read his speech with an absolutely straight face, given what everybody knows is going to happen tomorrow. I would like to re-christen this order as the "Helen Liddell to Deeside in the Summer" order. It must have been very pleasant for the Minister to sortie to Deeside to see Her Majesty in the glory of a September day.
That is what we have here and it is being continued. Of course the Opposition agrees absolutely with the Government that when there is a serious threat to order in our country they should take these powers. However, the fact that we are discussing them the day before the Chancellor is due to dish out goodies as though there will be no day after tomorrow amuses me very slightly. The Minister said that there were threats to our fuel supplies. Most of the threats at the moment seem to be concerned with water and not petrol or diesel. That appears to be a far greater threat than to fuel supplies.
Even if we have a problem the Government will simply issue a list of petrol stations to which people in the emergency services can go. The problem of getting the petrol to those stations does not appear to have been tackled by the Government, unless they have come to some agreement with the fuel companies and the drivers. I thought I saw television pictures of the Minister's noble friend Lord Macdonald of Tradeston sharing a press conference with the leader of the protesters saying that there was not going to be any great trouble. I do not believe that there will be.

1439
I suspect that tomorrow the Minister will buy off the summer protestors. It reminds me of Robert Burns' poem about a mouse in which he says,
"O what a panic's in thy breastie!".
The Chancellor will know that well. There seems to be an amazing panic. I do not believe that we will reduce the price of petrol, but prices will be reduced for some things for the farmers and a bit will be done for the road hauliers and so forth. Yet at the same time that amazing proponent of the English language, the Deputy Prime Minister, tells us that the floods are entirely due to global warming, the burning of fossil fuels and the motorist—and the haulier, I presume, burning petrol and diesel and pouring carbon dioxide into the atmosphere. If ever I saw a Government trying to have it both ways by their performance, I have seen that in the past week. I do not believe that global warming has much to do with it. The rain that normally falls in Scotland has fallen in England—and we have a far better drainage system in the north of Scotland than clearly there is in England. Equally, I remember five years ago there were droughts in England which were attributable to global warming. So it appears that drought and now floods are due to global warming. I am a little sceptical about that.
What I find really amazing is that in the same week that the Government are complaining about the use of motor cars and lorries and global warming, they are also prepared tomorrow to make it actually less expensive for people to motor and use their lorries. The Government have to make up their mind where they stand on this.
I am not going to go on about this. I have said my piece and I do not believe that these emergency powers will be used, as they were not implemented on the last occasion. But if the Government ever really needed to use them properly they would have our absolute support because we cannot allow the country to grind to a halt. The Government will have to be careful that they do not play this strange game too often. I remind them of the little boy who cried wolf far too often. The Government are in severe danger of doing that.
Lord Sainsbury of Turville: My Lords, we have listened with great care to the protesters since they began their cause. My noble friend the Minister of Transport, Lord Macdonald, and the Parliamentary Under-Secretary of State for Transport, the noble Lord, Lord Whitty, have met the Road Haulage Association, the Freight Transport Association and the People's Fuel Lobby, among others.
Government is about making decisions and if we agreed with the views of all lobbyists then the Government would probably be bankrupt within a short space of time.
I want also to make it clear that the reserve powers to which this Order in Council provides access enables us to make special arrangements to safeguard supplies of fuel to essential services. We very much hope that it will not be necessary to use the powers again in the foreseeable future. But we are quite certain that we
1440
have a duty to take appropriate precautionary measures. Although the noble Lord may see this order as being unnecessary, I believe he will agree that it is a sensible precaution to take in the circumstances.
He anticipates what the Chancellor will say tomorrow. That is unwise until we hear what it is. We can then debate what is the exact balance between lowering taxes on fuel to help people and the issue of global warming which is intimately related to it. I observe that the noble Lord raised that issue, but he did not say where his party stood on it or where he thought the balance should be struck. I respect him for that because it leaves the noble Lord total flexibility tomorrow to approach the subject from whichever direction he chooses.
He rightly pointed out that these particular powers do not tackle the problem of getting oil to the petrol stations. We have a memorandum of understanding with the oil companies, the police and the other participants on that.
As regards global warming, it is perfectly possible—indeed, the experts believe that it is very likely—that in the end there will be more rain in Scotland and a drier South. I am sure that he will be looking forward to that.
Finally, the Chancellor will deliver his Statement tomorrow explaining what we believe is right for the whole country and not what is right for those who shout the loudest. As a responsible Government we have a duty to ensure that essential supplies of fuel are kept moving. These reserve powers are a means to achieve that goal. I commend the order to the House.
On Question, Motion agreed to.
Lord Sainsbury of Turville: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to. [The sitting was suspended from 7.50 to 8.30 p.m.]

Countryside and Rights of Way Bill
Further consideration of amendments on Report resumed on Clause 18.
Baroness Byford Baroness Byford moved Amendment No. 95:
Clause 18, page 11. line 3, leave out ("and with the general restrictions in Schedule 2") and insert ("with Schedule 2, with any restriction imposed under Chapter II, and with the law").
The noble Baroness said: My Lords, the Government undertook to consider an amendment to extend the power of wardens to enforce restrictions under Chapter II. However, Clause 18(2)(a) as drafted does not appear to enable wardens to enforce restrictions on dogs under Schedule 2. The clause refers only to the general restrictions in the schedule. The restrictions on dogs are set out in a quite separate paragraph in the schedule.
The Countryside Agency and the Countryside Council for Wales are in favour of wardens being able to secure compliance with the law generally; for example, if someone commits a criminal offence on access land. It would seem odd for a warden to be able to enforce the rules in terms of civil abuse of a right of access, but not in terms of criminal abuse on access land. The amendment would rectify those deficiencies. I beg to move.
Lord McIntosh of Haringey: My Lords, I referred to Amendment No. 96 in discussing the issue of wardens before we adjourned for dinner. I hope that the House will accept that the amendment fulfils our commitment specifically to provide in Clause 18 that wardens may be appointed to enforce any restriction or exclusion imposed under Chapter II. It is sensible that access authorities should be able to appoint wardens for these purposes, and the amendment makes it possible. Let me make it clear to the noble Baroness, Lady Byford, that this includes enforcing restrictions on dogs.
We do not believe that wardens' powers should be extended, as proposed in Amendment No. 95, to enable them to enforce the law generally. Access authorities may appoint anyone as a warden. Such people could be part-time or they could be volunteers. There could he a dedicated number of paid wardens: they could be gamekeepers or members of a local conservation body. It would not be appropriate to set them up in effect as a new general police force, which would be the effect of the amendment. They will be able to deal with those who trespass on the land, for instance, because trespassers will be in breach of a restriction. They will be able to enforce by-laws, but they should not be expected to carry out law enforcement more generally. That should be the job of a police officer.
To be precise on the issue of dogs, the headings in Schedule 2 will be altered when the Bill is next printed. All the restrictions are general restrictions that can be enforced.
Baroness Byford: My Lords, I thank the Minister for that response. I should have spoken to Amendment No. 96 in moving the amendment. I thank him for coming forward with Amendment No. 96, which clarifies the position we discussed in Committee.
I understand why the Minister is not too happy about the thrust of my Amendment No. 95, particularly with reference to volunteer or part-time wardens. I should like a chance to reflect on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh Lord McIntosh moved Amendment No. 96:
Clause 18, page 11. line 4, at end insert—
("and any other restrictions imposed under Chapter II, (aa) to enforce any exclusion imposed under Chapter II,").
On Question, amendment agreed to.
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 96A:
Alter Clause 18, insert the following new clause —

Countryside and Rights of Way Bill

  FAILURE TO COMPLY WITH SCHEDULE 2, CHAPTER 2 OR BYELAWS ON ACCESS LAND
  (" .—(1) Where it appears to an access authority that a person has repeatedly or persistently failed to comply with Schedule 2 or with any restriction imposed under Chapter II, or committed an offence or offences and acted in contravention of byelaws on any access land, the access authority shall take such steps as appear to it to be appropriate to prevent or reduce future such failures, offences or breaches.
  (2) For the purposes of subsection (1), an access authority shall be entitled to all such remedies and reliefs as would have been available to the owner of, or any person interested in, that land.").
  The noble Viscount said: My Lords, on the first day of the Report stage, we had a series of debates as to what was to be done about people who persistently disregarded the rules controlling the right of access. Everyone in this House recognises that most of those exercising the right of access will want to obey the rules, that any transgression will be inadvertent and that when it is pointed out to them they will apologise and obey.
  Equally, everyone—certainly the noble Lord. Lord McIntosh—accepts that there will inevitably be a few people who will transgress, who will not mend their ways when the rules are pointed out to them and who will be deliberately and persistently unco-operative. They will undoubtedly be relatively few, but they are the ones who will cause the aggravation and resentment. We have debated at some length the question of what is to be done about such persons.
  The fact that most people obey the law does not mean that we do not take steps to stop those who do not. The vast majority of people do not commit murder; but that does not mean that we need not do anything about the few who do. I do not suggest that this is comparative. What I am saying is that one needs some form of mechanism to deal with people who persistently flout the rules.
  The Government in their wisdom have determinedly refused to accept that flouting the rules could constitute either a criminal offence or provide grounds for an exclusion order. They say that this is a matter for the civil law of trespass and that the proper remedy in relation to someone who persistently flouts the law is an injunction. I am not wholly convinced by that argument. However, in this amendment I bow wholly to it, accept it and advance a method of dealing with the situation. It is in a genuine spirit of compromise that my amendment accepts the government position but says that, where there is a persistent offender, it is for the access authority to take the steps which it thinks appropriate. That is important to stop further breaches and to deal with the persistent offender who shows no signs of giving up his conduct.
  No doubt, if the amendment were enacted, the first step of the authority would be either a letter to the offender or a visit by, let us say, a warden, or both. As the visit or the letter would come from a public authority, no doubt in many cases it would be sufficient to deter the offender and cause him to mend his ways. But in circumstances where it did not, the

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  amendment is backed by the final resort: the access authority being able to seek an injunction against a persistent offender and being entitled to such relief wherever the occupier of the land would himself have been entitled. In my respectful submission, my amendment is better and fairer in all respects in enabling and requiring the authority to do this. First, obviously, the authority will have a lot more clout than an individual owner. Secondly, the authority will know how to deal with the matter. It will have legal advisers and so on, who will be able to point it in the right direction to obtain an injunction if it needs to do so, and to write suitable letters.
  It is a daunting prospect for some tenant farmer whose sheep are being regularly chased or whose land is regularly being used for rave-ups, or whatever it may be, to see a solicitor and to be told that he must take injunction proceedings but that they will cost a great deal and the court may not give him the costs, that he will have to swear affidavits and so on. A tenant farmer, especially in the present climate of farming, has got better things to do with his time; and, indeed, probably does not have the money to do what will be required.
  Surely it would be much fairer if the costs of dealing with a persistent offender were borne by the authority rather than by the individual. He did not want people on his land in the first place: it is the Government who have decided to let them go there. But if those people decide to misbehave, surely the public authority should take steps to deal with the situation.
  I have wholly accepted the Government's position that this matter must be dealt with under civil law. I am simply saying that it should be for the access authority to take the steps that it believes to be "appropriate" to deal with the situation. If the offence is merely minor or technical, the authority can say to the owner, "Look, we know that that is strictly a breach, but it has not done any harm so let's forget it". If the matter is deemed to be more serious, the authority can approach the person concerned and try to persuade him to stop. However, if nothing will stop conduct that is seriously harmful, then, as a last resort, the access authority could apply to the courts for an injunction to which the occupier would have been entitled.
  I sincerely hope that the Government will accept that this as a serious, mid-way solution to trying to deal with this highly intransigent problem. As we have repeatedly said, unless the problem is solved in some way it will haunt this Bill for all time. If nothing can be done about a persistent offender, that will be a running sore that will wreck the co-operation that would undoubtedly, in everyone's mind, be the best way forward for this Bill. I beg to move.
  Earl Peel: My Lords, I shall speak briefly in support of the noble Viscount's amendment. As he said, we have failed to persuade the Government that there should be some resort to criminal sanctions against those who persistently disregard the arrangements under Schedule 2 and Chapter II. As the noble Viscount said, it seems to be an extremely modest
  1444
  amendment. If the access authorities were given the powers afforded to owners, I believe that people would perhaps take them more seriously. Indeed, we might go some way towards overcoming this deep-rooted problem within the Bill. Unless we can resolve it in some way, shape or form, the opportunities for conflict and bad feeling—something that we must try to avoid—will not be covered.
  The noble Viscount also referred to the question of costs being borne by the authorities. That, too, is a most important consideration. There are undoubtedly quite a number of owners and occupiers who may be affected by those who persistently ignore the restrictions under Schedule 2 and Chapter II, but who simply do not have the resources to pursue a civil action. I hope that the Government will accept this amendment. It is a modest compromise but one which I believe would go quite a long way towards solving a problem that, quite frankly, needs to be solved if the Bill is to be effective.
  8.45 p.m.
  Lord Monro of Langholm: My Lords, I support the remarks made by the two previous speakers. There should be some point of last resort—some sort of provision—to deal with the situation, or one or two people could bring this legislation into disrepute by continually disobeying the rules because there is no sanction to stop them doing so. Bad publicity in press reports featuring those people would do the legislation an immense amount of harm. River wardens have much stronger powers than those that we are offering to wardens in this Bill, but they have the same sort of objective: they are stopping poaching, whereas our wardens will be stopping people from misbehaving on access land.
  As my noble friend Lord Peel said, this is a modest sanction. However, it is a provision that can only do good. I cannot see any reason that it could be accused of causing harm. I know that the Minister will talk about criminalisation, and so on, but this amendment would not do that. All we are asking is that the access authority should use its authority to deal with the transgressor. We do not suggest that that should be done by way of taking the offender to court to face a fine or worse. The fact that an authority would be able, with the full backing of its powers, to write a formal letter, or, as the noble Viscount, Lord Bledisloe, to send a warden to see the offender, would surely have more effect on an individual than just saying, "Look here, you mustn't do that again for 72 hours".
  Baroness Carnegy of Lour: My Lords, I should like to support this amendment. I do so mainly because I believe that the small farmer will feel desperate if nothing can be done in these circumstances. The news that he is desperate will get around among other farmers, which will badly damage the scheme. I can see from the noble Lord's face that he is very cross with me

  1445
  for intervening. However, he needs to realise that people will feel pretty desperate about this, and that is not a very nice feeling.
  Baroness Byford: My Lords, I, too, support the noble Viscount, Lord Bledisloe. I talk to many different farmers, and those who live in rural areas, on my travels around the countryside. The one matter that is permanently raised is the whole question not just of crime but of an uneasiness in the countryside. I can only beg the Government to consider this sympathetically. I do not like to prejudge what the noble Lord will say; indeed, perhaps he will say that it is a great amendment and accept it. However, if he is unable to do so, perhaps he could tell us how the Government envisage coping with the problem.
  I believe that all quarters of the House have accepted that it is only a small minority of people who could ruin this Bill and spoil enjoyment of the countryside for the vast majority. If such amendments as the one now before The House—which, it is to be hoped, will deal with persistent offenders—are not accepted, how will the Government make it possible for the vast majority to enjoy the countryside when just a few may well disrupt that enjoyment? I hope that the Minister will he able to accept the amendment.
  Baroness Young of Old Scone: My Lords, I must voice some concern about this amendment. Although I share the view that there needs to be some provision for what I would define as "wilful and persistent offences", especially against restrictions or exclusions imposed under Chapter II of the Bill, I do not believe that this amendment would achieve that aim. It starts off well by defining all the activities that people might do persistently and wilfully, but then it seems to peter out at the end with a kind of wishy-washy back end. The issue of persistent and wilful failure to comply with restrictions or exclusions imposed under Chapter II is sufficiently serious to need something more robust than the provisions suggested in this amendment. Although I cannot support the amendment, I believe that the concerns that have been expressed about persistent and wilful infringement are very valid.
  Viscount Bledisloe: My Lords, before the noble Baroness concludes, can she tell me what she would do about my "wishy-washy back end"? I am delighted to be told that my back end is wishy-washy, but it would be a great help if the noble Baroness could say what should be done about persistent offenders. I agree that my amendment may be rather wishy-washy, but I cannot persuade her Front Bench to accept anything more forceful. I should like some guidance from the noble Baroness as to what she thinks should be done about wilful and persistent offenders.
  Baroness Young of Old Scone: My Lords, I understand why my noble friends on this Front Bench would be unable to accept some of the broader provisions in the first part of the amendment. It seems to me that we should not criminalise some of the failures to comply with the restrictions in Schedule 2.
  1446
  It is more important to narrow down the offences to the wilful and flagrant breaking of restrictions or exclusions that have been imposed after a very thorough process of consultation. I believe that one could narrow this down and take out the words,
  "committed an offence … and acted in contravention of byelaws",
  for which there are already clear penalties provided in law. I do not think that we need to introduce anything further to back up by-laws or situations where an offence has clearly been committed. However, as regards restrictions or exclusions under Chapter II which are aimed at preventing things from happening rather than closing the door after the horse has bolted, and where damage has already occurred, there ought to be some rather stronger sanction which does not criminalise many of the provisions of the Bill but simply focuses on specific conditions and defines in some way "wilful and persistent" and produces a criminal offence.
  Lord McIntosh of Haringey: My Lords, I demand witness protection against the noble Baroness. Lady Carnegy. I did not think that I moved a muscle in my face. It is clear that I am a bad poker player. However, I do not think that I can be expected to sit on the Front Bench hour after hour with the face of a sphinx.
  Surely we have already shown in response to what the noble Viscount, Lord Bledisloe, said at earlier stages of the Bill—I pay tribute to his persistence in pursuit of persistent offenders—that we have positive proposals to deal with this problem. We have shown that in our response to the amendments on wardens and in Amendment No. 96—which has just been accepted—which widens the purposes for which wardens are to be employed. We have done all of those things. We have said that we expect authorities to make by-laws when they consider that that would help.
  The noble Baroness, Lady Byford, asked me how the Government would cope with these problems. The Government will cope with them in a number of ways. The authorities could use these powers even where the problems caused resulted from the actions of only one person, for example, someone who visits the land most days and always leaves the gate open. I take that to be one version of being a persistent offender. The access authority could ask a warden to patrol the area in question. The warden will be able to inform the user of their rights and their responsibilities under the new right and may, if authorised by the owner, require the person to leave the land. Any such person will lose his right of access for the next 72 hours—that is another change that we have made during the passage of the Bill—so should he return the next day he will immediately be a trespasser and the warden would be able to respond.
  Local authorities have existing powers to seek injunctions under Section 222 of the Local Government Act 1972 where it is,
  "expedient for the promotion or protection of the interests of the inhabitants of their area".
  I acknowledge that this does not give them the same powers as the owner of the access land would hake, but it does give them powers to seek injunctions to restrain

  1447
  further conduct that would otherwise be unlawful or criminal and which is contrary to the interests of the wider community. This could include circumstances where someone persistently infringes Schedule 2 restrictions or restrictions imposed under Chapter II. We believe that the test in the 1972 Act is correct. It would not be right for local authorities to seek to enforce in the courts all cases of trespass arising under Part I. I have warned on many occasions during the course of this Bill against trying to meddle with the law of trespass which has survived many centuries of those who would wish to make it a more criminal procedure.
  However, this amendment would require action to be taken—
  Earl Peel: My Lords, I am not absolutely certain what the noble Lord is saying. As I understand the position, the amendment of the noble Viscount, Lord Bledisloe, simply gives the access authority powers that at the moment are vested in the owner. That in no way would allow the access authority to try to criminalise trespass, other than the fact that the perpetrator of a crime might commit a criminal offence. Trespass is still trespass and there is no criminal offence against it; it is just a question of transference of power.
  Lord McIntosh of Haringey: My Lords, I shall come on to the exegesis of the amendment in a moment but it comprises a requirement. It states,
  "shall take such steps as appear to it to be appropriate".
  The amendment requires action to be taken regardless of the seriousness of the breach, although it leaves unspecified what the action should be. County councils and national park authorities would be required to take action to stop any breaches of restrictions and the commission of any criminal offences. This would not be practical or desirable. It is in general for the prosecuting authorities, and in particular the police force, to enforce the criminal law and prosecute where it is right to do so.
  Apart from the access authorities, the countryside bodies and others have an important role to play in dealing with persistent breaches. For example, where there is a widespread and serious problem of damage being done in an area, it may be appropriate for the relevant authorities—not the access authorities—to make a direction excluding all access under the right for at least a period. We shall debate shortly the information duty which is to be placed on the countryside bodies. Information and education will be key to ensuring that public access does not cause problems.
  I appreciate that noble Lords who support the amendment have recognised that we are talking here about a small minority of the people who will enjoy, and benefit from, the right of access. That is a valuable recognition and one which brings us closer. However, I caution the House against proposing further powers against persistent offenders along the lines proposed by the amendment. All the way through the Bill we
  1448
  have adopted a light touch, both for users of the right of access and landowners. If we were to accept the amendment, surely in balance we would require access authorities to take action against landowners who wilfully and persistently obstruct or frustrate access. There are some who would like to do that, but I suggest that to criminalise what can normally and almost always be dealt with in a less severe manner would be a grave mistake.
  Baroness Byford: My Lords, before the noble Lord sits down, the amendment of the noble Viscount, Lord Bledisloe, states clearly that the access authority,
  "shall take such steps as appear to it to be appropriate".
  I should have thought that that was relevant. The amendment does not state that it should always take steps or what steps should be taken. However, where the access authority considers it appropriate to take steps it should have the power to take them. Will the Minister clarify the position?
  Lord McIntosh of Haringey: My Lords, part of my concern is that the amendment would require the access authority to take steps but does not make clear what those steps should comprise. As King Lear said:
  "We shall do such things, what they shall be I know not, hut they shall be the terror of the earth".
  9 p.m.
  Viscount Bledisloe: My Lords, it is an extraordinary position where in consecutive sentences from the Labour Benches, on the one hand, one is accused of being too wet and, on the other hand, one is accused of being too stringent. One might take that as a rather good demonstration that one had the position about right.
  I say with respect that the Minister's answer is one of the most unsatisfactory I have heard in some years. But before I discuss that I say to the noble Baroness, Lady Young of Old Scone, that we are only trying here to deal with wilful and persistent offenders. We include by-laws because it is a well-known fact that occasionally a by-law carries such a small penalty that an offender continues to offend because he considers that to be taken to court and made to pay a £5 fine does not matter. There are well-known cases of that. I refer to the case of a flower seller in Birmingham where recourse has had to be taken to a civil injunction because the penalty for breach of the relevant by-law was so small that the offender deliberately continued with the offence. He preferred to pay the fine rather than obey the law. That is why I included by-laws in the amendment.
  However, if a prosecution under a by-law will suffice, that is the step that the access authority can regard as appropriate. It need only have recourse to an injunction if it decides at its discretion that the other steps that can be taken are not appropriate to achieve compliance.
  I turn to the reply of the Minister. He said, first, that we shall have wardens and they can inform people of their obligations. However, in Committee he told us

  1449
  that when he speaks to people on Hampstead Heath about their obligations in relation to their dogs their answers are mainly expletives. He and I politely deleted the expletives from our speeches. A warden may say to a man, "You realise that you should have your dog on a lead", and the reply is, "Well, (expletive deleted) that! I shall take him off the lead". If the warden cannot say, "I shall take some steps about that", he is powerless.
  The amendment does not provide enforcement against all trespassers. As the noble Baroness, Lady Byford, said, it requires the local authority only to do what it thinks appropriate. If the local authority thinks that the breach is technical and harms no one, it can say, "Forget it". It may think that compliance can be secured by lesser means—writing a letter, visiting the man, or saying to him, "If you continue to do this, the result will be that you must stay off the land for 72 hours". However, the man may say, "You tell me I cannot come back within 72 hours, but I shall do so". Alternatively, the individual may come back and do the same thing after 73 hours. That provides little consolation to the owner.
  In an extraordinary way the Minister then dragged in the criminal law and said that one seeks to "criminalise" the situation. The whole point is that the amendment goes down the route that the Minister has recommended throughout: of keeping to the civil law. The amendment simply provides that where the civil law is appropriate it shall be for the access authority to invoke the civil law if the occupier cannot or will not do so.
  The noble Lord talked about the light touch. The light touch is all very well but it is not much good for dealing with the chap who gives two fingers to it. When the individual will not react to the light touch there has to be some scope for a slightly heavier touch. But the amendment does not seek to criminalise anything. It resorts to the civil law.
  I have heard the Minister's answer. In normal circumstances I would divide the House. However, I accept that this is the first time the proposition has been mooted. I suggest that the Government consider the issue again. If they do not do so, I give clear warning that I shall return to the matter at Third Reading. 1. beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 19 [Notices indicating boundaries, etc.]:
  Baroness Byford Baroness Byford moved Amendment No. 97:
  Clause 19, page 11, line 21, leave out ("may") and insert ("shall, where reasonably practicable").
  The noble Baroness said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 102 and 99. I shall not detain the House. Amendments Nos. 97 and 102 speak for themselves. They replace "may" with "shall" making the provision more definite.
  Amendment No. 99 would insert,
  "in particular where a definitive map in conclusive form is not in existence".
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  Clause 92 lays down the timetable that the Government envisage for the implementation of the Bill because different parts of the Bill will come into force at different times. We spoke about that at some length in Committee. For instance, the general provisions on access, the definition of excepted land and the provisions for controlling the mapping process come into force two months to the day from Royal Assent. The right to enter on to access land and the restrictions to be observed by people doing so will not come into force until the Secretary of State says so.
  We have heard many estimates of the length of the gap between those two enforcements. I have listened hard but I am not aware that the Government have been definitive, nor that they have taken serious exception to any of the intervals suggested, or even stated whether they intend to authorise Clause 2 over the whole country at once or area by area. Indeed, their thinking may have moved on since we discussed the matter in Committee.
  On the other hand, many people outside this I-louse believe already that the Government have granted open access to everywhere—lowland, upland fell land or cultivated fields. I have mentioned previously the Royal Institution of Chartered Surveyors. It mentions this phenomenon in its document on the implications of enhanced access to the open countryside. It states:
  "Chartered surveyors across the country report members of the public claiming they now have 'freedom to roam' because 'it says so in the paper"'.
  Indeed, at the weekend the issue was raised again with me in Norfolk and Suffolk.
  This situation is with us; it has not gone away. I suspect that it will not go away. Later amendments deal directly with the matter which needs to be tackled. There are issues of safety. Access land may require work to make it safe. There are issues of land management. The occupiers have not yet put into place the alterations necessary to accommodate the public, and have not moved to an alternative location things they wish to retain for themselves.
  The only people who can make any impression on the problem are the access authorities. The Bill should make it abundantly clear that they have a duty to do so and quickly. We believe that our amendment is a neat method of ensuring that they do. I support Amendment No. 103 which my noble friend Lord Peel will move shortly. I beg to move.
  Earl Peel: My Lords, I speak to Amendments Nos. 98, 100 and 103. I welcome Amendment No. 101 which the Minister will move. It is a help and provides for owners to be consulted before notices are erected on their land. But I wonder why the words "reasonably practicable" appear. I suggest that the precedent for such consultation is already well established in Section 27(1) of the Countryside Act 1968 which relates to signs showing where footpaths leave metal roads. That Act contains a simple reference to consultation with the owner or occupier and no mention of the words "if reasonably practicable". Why do the Government

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  want to introduce those words into the Bill? They are unnecessary and create an additional problem for the access authority.
  I have no intention of going back over the arguments about the Metalliferous Mines Regulation Act 1872 or the Quarries and Mines Act 1954. We had a good debate in Committee about liability and the additional costs that owners were likely to incur because of the access provisions. Amendment No. 100 is straightforward. It says:
  "An access authority shall take such steps and carry out such work (including the erection and maintenance of fences, signs or notices) as appear to it requisite for protecting the public from any source of danger".
  Once again, we come back to the thorny question of who will be responsible for protecting the public from such dangers on access land. It is not reasonable that the owner should be responsible. As I explained when we discussed liability, in some cases the landowner could incur considerable expense. The amendment would go some way towards dealing with that, but it would not negate the liability issue. An access authority may decide not to fence the land if that does not appear "requisite", as the amendment says. However, at least the amendment would go some way and would ensure that the authority was responsible for dealing with the problem of dangers on access land.
  Amendment No. 103 relates to signs and notices. In Committee my noble friend Lord Jopling demolished a similar amendment, rightly pointing out that it was defective, as it referred to any sign, regardless of its provenance. I hope that the new version will be more acceptable. It may not be necessary, but the point is so important that it needs some airing.
  The notices and signs erected under Clause 19 will be essential in getting across information to the public. I hope that they will provide a comprehensive account of any general restrictions under Schedule 2 or Clause 2 and information on any by-laws and access land boundaries. I very much hope that the access authorities will also use them to provide general information about the land and why it is managed in the way that it is. That educational element could help to erode any conflict that might arise.
  Unfortunately, signs and notices are too often defaced or removed. I speak from experience on that. Given their vital role for the successful implementation of the Bill, a criminal sanction is required to protect them, if one does not already exist. I look forward with great interest to the Minister's response.
  Lord Marlesford: My Lords, I am very often on my noble friend's side. I am sympathetic with his wish that the cost of signs should not be borne by the person who owns or occupies the land. However, I am worried about the possible results of the wording of the amendment, particularly the words "shall", "requisite" and "any source of danger".
  The countryside should be as unspoilt and as beautiful as possible. I would generally rely on a landowner to respect that view, but I am worried that
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  a local authority with a statutory obligation expressed in the words of the amendment would go over the top. We could end up with an awful plethora of signs, repetitions of signs and goodness knows what. Frankly, I believe that the landscape is much too precious to take that risk. Therefore, I would not be happy with Amendment No. 100, put forward by my noble friend.
  9.15 p.m.
  Lord McIntosh of Haringey: My Lords, I start by reminding the House that, although grave matters have been discussed in this short debate, Clause 19 concerns notices. It is not a fundamental part of the Bill, although I do not deny that notices can be most valuable as well as, as the noble Lord, Lord Marlesford, said, potentially dangerous.
  I speak first to government Amendment No. 101 which provides that, before an access authority erects a notice on access land under Clause 19, it should, where reasonably practicable, consult the owner or occupier of the land. This amendment meets the commitment that we made in Committee to introduce a duty on access authorities to consult, similar to their duty under Section 27(1) of the Countryside Act 1968 to consult before erecting signposts on rights of way.
  I was asked why that duty is qualified by "if reasonably practicable". It can often be difficult to assert the identity of the owner or occupier of land, particularly where the land is unregistered and where there is no obvious person in occupation. That does occur in areas of open country. If the requirement were not qualified in that way, the access authority might be required to erect a notice simply to inform "anyone whom it may concern" that it intended to erect another notice using its powers under Clause 19. I believe that the House will agree that that would not make very good sense. Therefore, the qualified requirement meets all reasonable demands for consultation.
  I turn to the other amendments in this group. Amendment No. 97 would place a duty on authorities to erect notices indicating the boundaries of access and excepted land and giving information as to the effect of restrictions or other information about access land wherever it is reasonably practicable to do so. What is "reasonably practicable" in this case? I know what the phrase means when it refers to identifying owners. However, in this instance "reasonably practicable" could mean that they should not bump into each other but should be placed apart at a distance, say, of 3 feet. I do not know what is intended.
  Our intention is that the authority should be able to erect signs where they are most needed, perhaps at frequently used means of access or locations where the boundary of access land may not be clear. However, here "reasonably practicable" seems to run the risk—again, identified by the noble Lord, Lord Marlesford—of flooding our uplands with unnecessary signs. I do not believe that anyone wants to see that.
  We believe that it is right for local authorities to use their discretion in assessing where and when notices are required. As I said, government Amendment

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  No. 101 places those authorities under a duty to consult, if reasonably practicable, the owners or occupiers of land before erecting notices. Therefore, I believe that we could expect people on the ground, so to speak, to reach sensible agreements without adding this amendment to the Bill.
  Amendment No. 98 would require that access authorities should consult,
  "persons interested in the land".
  Again, I have lent my support to consultation. However, who are persons interested in the land? As I said in Committee, "interest" is defined in Clause 41 as including any estate in land and any right over land, including by virtue of a licence or agreement. That would mean common or sporting rights over the land. It would not be practicable to require consultation with all those interests, of which there could be hundreds in a particular area. The notices would not have any impact on most of the people who would be required to be consulted.
  Amendment No. 99 would require access authorities to erect notices,
  "in particular where a definitive map in conclusive form is not in existence".
  However, the right of access will not come into force until definitive maps are in existence. It would not be appropriate to erect notices before the right comes into force purely to inform the public that they do not have a right of access. That is the only sense that I can make of this amendment.
  Amendment No. 100 concerns the safety of those who exercise the new right of access and how it should be protected. We have made clear that those who exercise the new right should take responsibility for their own safety. I believe that that is the fundamental principle to which we must adhere. It is not for government or anyone else to take the necessary steps to ensure that no one is injured, lost or damaged in any way in our countryside. That would be the nanny state carried to absurd extremes. People expect to take risks; they do so now and they will continue to do so. Some people glory in it. I cannot think why, but they do. That is why we have substantially removed occupiers' liability in relation to the natural features of the landscape.
  Government Amendment No. 73, to which we have already agreed, removes occupiers' liability in respect of any river, stream ditch or pond, whether or not it is a natural future, and also removes liability in respect of someone suffering injury when climbing or walking through a wall, fence or gate. Government Amendment No. 77 provides for the courts to have regard to, in considering questions of liability, the need to ensure that the new right of access does not place an undue burden on the owner or occupier of land.
  I understand concerns that landowners should not be subject to additional costs. But local authorities will have, in some circumstances, powers to remove dangers on land and to make payments to others who carry out works to prevent or remove danger. In addition, land which poses a danger to the public by
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  virtue of anything done or proposed to be done to the land—such as, for example, quarrying—may be closed to access under Clause 23 of the Bill.
  There may be some cases where the landowner is obliged to fence dangers such as quarries. If the noble Earl, Lord Peel, wants to talk about that between now and a later stage, I am happy to do that. But in many cases they already have those duties under existing legislation. There are duties under environmental protection legislation and under health and safety legislation which require landowners or employers to remove dangers.
  And of course, access authorities will have the power under Clause 19 to erect notices informing the public of any hazards on the land where the access authority feels that warning is needed. So it is not necessary to give those access authorities a duty to fence off that land.
  Finally, Amendment No. 103 would make the removal or defacement of a notice erected under Clause 19 a criminal offence. I agree that notices should be protected from vandalism and I am happy to inform the noble Earl, Lord Peel, that they are already protected under existing criminal law. Section 1(1) of the Criminal Damage Act 1971 provides that a person who without lawful excuse destroys or damages any property belonging to another, intending I o destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged, shall be guilty of an offence.
  Earl Peel: My Lords, I am grateful to the noble Lord for that. Will he give me an assurance that that criminal activity of removing or defacing a notice will appear in the code of practice? I say that because it is such an integral part of implementing the access agreements that I believe it should be made absolutely clear to everybody that removing or defacing a sign is a criminal offence.
  Lord McIntosh of Haringey: My Lords, I agree with that and I shall draw the noble Earl's remarks to the attention of those who are drawing up the codes of practice.
  Finally, I turn to Amendment No. 102. We have provided that access authorities may contribute to the cost of a landowner erecting a suitable notice or may refund the cost in full. We have not made that a requirement because authorities must be able to use their discretion in judging whether a contribution should be made.
  It may well be reasonable for authorities to reimburse landowners who have put up useful and informative signs. But I do not see a need for a plethora—again, I use the word of the noble Lord, Lord Marlesford—of signs on open country, and I do not want to promote such an outcome by providing that signs will always be funded at public expense.
  Baroness Byford: My Lords, I thank the Minister for his very full reply to the amendments. I smiled slightly when he asked where we got "reasonably practical"

  1455
  from. Indeed, had I known that in response to my amendment he was going to use the words "most needed", perhaps I should have considered those words to be more appropriate than "reasonably practical". But that is another matter.
  I thank the Minister for his response. I am well aware that noble Lords on all sides of the House do not wish to see the countryside swamped with notices. That is something that we certainly do not want to see. But we feel that there should be sufficient notices at the right time and in the right place. That is why we chose the words "reasonably practical".
  I turn to Amendment No. 101. I thank the Government for coming back with that amendment. We spoke about it in Committee and the Minister promised to return with an amendment, which we are now very pleased to have. The words "reasonably practical" do not cause concern to those of us on the Front Bench. The direction is that the owners should be consulted wherever it is reasonably practical to do so and we are grateful for that. Therefore, at this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 98 and 99 not moved.]
  Earl Peel Earl Peel moved Amendment No. 100:
  Clause 19, page 11, line 30, at end insert—
  ("( ) An access authority shall take such steps and carry out such work (including the erection and maintenance of fences, signs or notices) as appear to it requisite for protecting the public from any source of danger on access land or on adjoining land.").
  The noble Earl said: Perhaps I may respond to the comments made by my noble friend. I entirely subscribe to his view. The last thing in the world we want to see is unnecessary signs and fencing cluttering up the countryside. I do not know whether the noble Lord was present when we had the discussions on liability, but it became abundantly clear that landowners will be far more responsible for dealing with mineshafts and quarries under the liability provisions—
  Baroness Nicol: My Lords, I thank the noble Earl for giving way. Perhaps I may intervene on a point of order. Not only does he need the leave of the House to speak twice to his amendment; he needs to move it if he wants to make a speech.
  A noble Baroness: It is a new amendment.
  Earl Peel: My Lords, I believe that I am correct in what I am doing. The point I should like to make is that my amendment would not necessarily result in what the noble Lord, Lord Marlesford, suggested. Perhaps I may draw his attention to the wording, which states:
  "as appear to it requisite",
  which refers to the authority. It is very precise. If the authority decided that it was inappropriate to do so, they would not do so. However, if there was a danger to the public, which they thought it necessary to
  1456
  protect, this provision would give them the power to do so. It would place a duty on them to do so. I beg to move.
  Lord Marlesford: My Lords, if local authorities are put under that sort of obligation, a person in a junior position would probably say, "It is more than my job's worth not to put up a sign by that rabbit hole". (I do not speak literally.) That is human nature. We want to avoid that position. We must keep the countryside as unspoilt as possible. I agree with the Minister when he says that there are risks; these are the risks of everyday life and country life, and let us all accept them.
  Earl Peel: My Lords, that is absolutely fine. If we state that people should take responsibility for their own safety, as the Minister has said, they will simply sue the landowner because he has not followed the necessary safety requirements in order to prevent an accident from happening. I have heard the comments of the noble Lord. I am not happy about it. We shall come back to this issue at Third Reading. However, in the mean time I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 101:
  Clause 19, page 11, line 33, at end insert—
  ("(2A) Before erecting a notice on any land under subsection (1) the access authority shall, if reasonably practicable, consult the owner or occupier of the land.").
  On Question, amendment agreed to.
  [Amendments Nos. 102 and 103 not moved.]
  Lord Whitty Lord Whitty moved Amendment No. 104:
  After Clause 19, insert the following new clause—

  CODES OF CONDUCT AND OTHER INFORMATION
  (" .—(1) In relation to England, it shall be the duty of the Countryside Agency to issue, and from time to time revise, a code of conduct for the guidance of persons exercising the right conferred by section 2(1) and of persons interested in access land, and to take such other steps as appear to them expedient for securing—

  (a) that the public are informed of the situation and extent of, and means of access to, access land, and

  (b) that the public and persons interested in access land are informed of their respective rights and obligations under this Part.

  (2) In relation to Wales, it shall be the duty of the Countryside Council for Wales to issue, and from time to time revise, a code of conduct for the guidance of persons exercising the right conferred by section 2(1) and of persons interested in access land, and to take such other steps as appear to them expedient for securing the results mentioned in paragraphs (a) and (b) of subsection (1).
  (3) A code of conduct issued by the Countryside Agency or the Countryside Council for Wales may include provisions in pursuance of subsection (1) or (2) and in pursuance of section 86(1) of the National Parks and Access to the Countryside Act 1949.
  (4) The powers conferred by subsections (1) and (2) include power to contribute towards expenses incurred by other persons.").
  The noble Lord said: My Lords, Amendment No. 104 introduces a new clause into the Bill which is intended to ensure that the public and landowners

  1457
  have adequate information about their rights and responsibilities under the new right of access. It fulfils the commitment we made in Committee following concerns expressed in all quarters of the House.
  The new clause places a new duty on the countryside bodies to issue a code of conduct for the guidance of those exercising the new right, and to take the steps which they believe are necessary to ensure that the public are informed of the situation, extent of and means of access to access land. It also places a duty on them to take the necessary steps to ensure that the public and landowners are informed of their rights and obligations generally.
  The code of conduct issued under this clause may also contain information which goes beyond the new right of access—information relating to national parks, AONBs and long distance routes. The Countryside Agency already has a duty to provide information about access opportunities in these areas under the National Parks and Access to the Countryside Act 1949. It seems sensible that the agency should have the option of fulfilling that duty and the new similar duty in relation to access land.
  Under this new clause, the countryside bodies will also have the option of contributing towards expenses incurred by third parties in providing information about the new right of access. That provides an extra flexibility in terms of trying to ensure that the information gets across. I beg to move.
  9.30 p.m.
  Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 105:
  Line 10, leave out ("this Part") and insert ("Parts I to III of this Act").
  The noble Baroness said: My Lords, we welcome the Government's Amendment No. 104 which, as the Minister said, was widely called for on all sides of the Chamber in Committee. At that time we moved Amendment No. 103 which sought to put a statutory requirement for a country code on the face of the Bill. Amendment No. 105 seeks to widen that requirement from just Part I of the Bill into Parts II and III.
  Noble Lords will agree that, if there is to be a country code, it should cover open access land, farmland through which rights of way run and SSSIs, whether or not they are in open access land or other parts of the countryside. We are therefore keen that the country code should spread through all parts of the Bill.
  In moving this amendment, I wish to make a couple of points. First, there is no mention in Amendment No. 104 of the specific need about which I spoke in Committee; that is, that the Department for Education should take this matter seriously and include it in the national curriculum. Although the Countryside Agency and the Countryside Council for Wales will no doubt do a good job of informing the public about their rights and responsibilities, it is easier if children are taught those things at an early age. If it were introduced through the national curriculum as
  1458
  generations went through school, then people would understand it as an innate part of their education rather than having to learn it later in life.
  Secondly, this is one of the most important parts of our amendments this evening. People should know what their responsibilities are. It affects the issue of informing people that one is walking at night, not only because it is sensible to do so, but also because it causes much less difficulty. People should know when and where to keep their dogs on lead. This clause is probably the most important in ensuring that areas of conflict do not happen. We warmly welcome Amendment No. 104, but also hope that the Government will accept our Amendment No. 105. I beg to move.
  Lord Rotherwick: My Lords, I welcome the Government's Amendment No. 104 and also that of the noble Baroness, Lady Miller of Chilthorne Domer, Amendment No. 105. I should like to speak to my Amendment No. 138 and, as on many previous occasions, declare an interest as a land manager and a land owner outside an access area but with footpaths running through the land.
  I want to encourage the Government more fully to address the area of guidance and information. I believe there is concern that it is a weak area of the Bill How is the Bill to work well if up-to-date information on guidance and information is not easily disseminated.
  The aim of Amendment No. 138 is to ensure, through legislation, that a variety of guidance, information and its mechanisms are made as widely available and accessible to the public as it is to those who live and work in the countryside.
  It is important for those accessing the country to have the necessary and most up-to-date information so as not only to enjoy it to the full but also while there to conduct themselves properly according to the guidelines and regulations. That should help ensure that conflict between everyone is kept to a minimum. After all, at the end of the day one of the criteria on which the Bill will be judged will be the amount of conflict it has created in the countryside. The amendment covers some of the types of guidance which should be made available as well as the publishing of information on the mechanisms which disseminate the information. One might expect that a website or similar technological instrument would be such a mechanism.
  Surely, it is correct that up-to-date and necessary information is easily available to all those requiring it. Imagine the annoyance and frustration of those seeking access if such up-to-date information and guidance were not easily available. Let us take, for example, a person who journeys a long way with the aim of going on to access land only to find that his planned route has been spoilt by a diversion or, worse still, a correctly implemented 28 day type closure, as in Clause 21. Perhaps a closure may be due to a hazard such as fowl pest, foot and mouth disease or swine fever, as occurred recently—or, worse still, a Chernobyl-type disaster.

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  Certainly the wardens, land managers or landowners may well be put into a difficult position where conflict may occur. The names of access authorities should also be readily available. It is good practice to inform an authority if one's planned journey involves risks such as rock climbing, as we heard earlier from the noble Lord, Lord Greaves. Names of access authorities should also be readily available in the event of accidents. The up-to-date telephone numbers should be easy to find. Any person looking for such information should have no difficulty finding the codes of practice for the countryside, helping to minimise the conflict which might arise through ignorance.
  Other such examples, as are required for the Countryside Agency to disseminate information efficiently, can be found in Clause 23, which requires relevant authorities to restrict access if they are satisfied that due to exceptional weather conditions the area becomes a fire risk; in Clause 28, which allows for indefinite exclusion of access for the purpose of conserving flora and fauna; or in Clause 26, which allows the Secretary of State to exclude or restrict access for the purpose of national security or defence.
  In order easily to find such guidance and information, it would seem logical that information on the mechanisms should be published. I draw on my experience as an aviator to show how the CAA has disseminated information. It has used a host of methods such as "Dial-up fax forecasts for pilots" (better known as fax polling); "Met call-up direct" ("met" referring to the weather forecast); met on websites; and many other methods as well as the standard information found at airfields. The CAA publicises that information in a booklet entitled GET MET aviation weather services 2000 and it carries sponsors names. One would expect that numerous firms would sponsor similar exercises for the countryside.
  Finally, our local police, the Thames Valley Police use a Ringmaster Message service. That mechanism informs local land managers and owners and other interested parties of thefts and other such things, using e-mail and fax systems. That helps to ensure that the countryside works better not only for those who live and work in it but also for those who visit it. Will the Countryside Agency also use such devices?
  Lord Greaves: My Lords, I rise briefly to support the observations of the noble Lord, Lord Rotherwick, in relation to Amendment No. 138. The second part of his amendment contains a great deal of good sense. I emphasise the need for comprehensive information once areas of access come on stream, particularly in relation to restrictions and the closure of land at certain times. It is vital that such information is easily available to anyone who wants it. As part of the amendment suggests, the obvious way to do that nowadays is via the Internet. As to that, there is a great deal of experience. I do not apologise for again drawing on the experience of the British Mountaineering Council. If one wants to climb on any
  1460
  open crag in the British Isles one can discover what restrictions are in force, whether they relate to birds or access, or obtain information about how to reach it, where to park and so on, on the appropriate website. Not only do an increasing number of people have access to the Internet, but it is a very good way to provide details at local information points which many people will visit. It is crucial that that information is available nationally and is comprehensive and up to date. Having said that, I do not believe that that needs to be on the face of the Bill. It will be helpful if the Minister indicates whether he is thinking along those lines.
  Lord Williamson of Horton: My Lords, I support Amendment No. 104. I was one of those who in the earlier stages of the Bill pressed the case for the availability of information as an essential element to ensure that when enacted the legislation could be implemented in good spirit and without contention. I am pleased that we have a new clause which builds codes of conduct into the Bill. I am also pleased with the wording of the clause which refers, in particular, to the public being,
  "informed of the situation and extent of, and means of access to, access land".
  That will give rise to a better situation, and I thank the Government for it.
  The question of timing is raised by another important amendment in the group. I describe it as the final fling of the noble Baroness, Lady Byford, in that Amendment No. 264B is the penultimate amendment at this stage of the Bill. To assist the implementation of this Bill, it is essential that the codes of conduct, which are well provided for in Amendment No. 104, are available as soon as possible. The amendment in the name of the noble Baroness makes a direct link between codes of conduct and the implementation of Clause 2 of the Bill, which in many ways is desirable. I do not insist on building that into the Bill, but it is important that codes of conduct are quickly available because that is what the public and all those concerned with the right to roam need.
  Viscount Bledisloe: My Lords, I too welcome Amendment No. 104, which deals with the question of informing the public about the permanent situation; namely, what is access land, where it is and how to get to it. However, how do the Government intend to inform the public about more transient matters, such as exclusion periods and so on? Clearly, they cannot be included in a code of conduct which no doubt will be a permanent document like The Highway Code that is printed and in circulation. However, the public need to be informed in some way of exclusions and so on. Amendment No. 138, standing in the name of the noble Lord, Lord Rotherwick, does not begin to deal with that since Clause 31, which he seeks to amend, relates only to areas within the governance of the National Parks Authority or the Forestry Commission. These organisations are probably the best placed to deal with the situation. I should like the

  1461
  Minister to say how he sees information being promulgated with regard to temporary situations such as exclusion orders and so on.
  9.45 p.m.
  Lord Walpole: My Lords, I do not want to repeat what my noble friend Lord Bledisloe has just said. That would be a waste of time. I believe that Amendment No. 105, standing in the name of the noble Baroness, Lady Miller, is absolutely essential. I hope that the Government accept it. The amendment makes behaviour in the countryside relevant not only to access land—in which I have no personal interest whatever—but highly relevant to lowland walks and much of the footpath network, in which I have an interest. It also helps to protect wildlife. I hope that the Government will look sympathetically on it.
  Baroness Young of Old Scone: My Lords, I welcome government Amendment No. 104 which requires the Countryside Agency or the CCW to draw up a code of conduct. Perhaps I may also draw attention to another element of that amendment which refers to "other steps". I believe that it is important that the contents of that code are widely promulgated. A major exercise should start soon in order to get the public clued up about the requirements of this very different set of access provisions which will come into force when the Bill becomes law.
  Amendment No. 105 standing in the name of the noble Baroness, Lady Miller of Chilthorne Domer, has one slight inconsistency. I understand the wish to have a code of conduct that covers all the elements of access to the countryside. But it would be rather rash to ask the Countryside Agency to have responsibility for a code under Part III, which deals primarily with nature conservation. The Countryside Agency is a wonderful organisation, but, alas, not entirely au fait with all the provisions under nature conservation. I should declare an interest and say that if such a code were to exist, English Nature would have the responsibility for drawing up Part III.
  The Countess of Mar: My Lords, I, too, support Amendments Nos. 104 and 105, perhaps with the reservations given by the noble Baroness, Lady Young of Old Scone. I should like also to endorse what the noble Baroness said about the need to disperse this information as widely as possible.
  Perhaps I may ask the Minister whether he would consider the possibility of leafleting households throughout the country. It is a quite simple procedure these days. We get leaflets about all kinds of matters. The leaflets could have a brief résumé of the code and tell people where the code will be available. Perhaps the Minister could consider also whether the Government propose that the code should be available in bookshops and various countryside stores; for example, farm shops could have copies of the code.
  Lord Glentoran: My Lords, this has been the happiest afternoon of the proceedings on the Bill. I am beginning to believe that at the end of the proceedings
  1462
  we may have an Act which is enforceable and workable. I strongly support—with one reservation to which I shall come in a minute—Amendments Nos. 104 and 105. I should like to speak also to Amendments No. 264A, 264AA and 264B, although they do not all stand in my name.
  Perhaps I may turn first to Amendment No. 138, standing in the name of my noble friend Lord Rotherwick. The amendment in its present form it is not ideal. It has been good to hear the debate again around the House. It is a debate that we had quite early in Committee. Noble Lords were told that the amendment is an absolutely necessary basis for the functioning of the Bill—the spread of information, the method of getting the message across and of informing the general public of restrictions of rights and of all the matters that go within the Bill.
  On the first day in Committee I made the point to the noble Baroness, Lady Farrington, that the Government needed to promote at an early stage a serious education programme. If my memory serves me right, which it very rarely does nowadays, she said that the DfEE would be working with the DETR and that we would see another example Of joined-up government. I find it encouraging that that has come through.
  Amendments Nos. 264A, 264AA and 264B are critical to the management of the process. As the noble Lord, Lord Williamson pointed out, they are essentially about timing. While we support Amendments Nos. 104 and 105, it is important that the structures, the codes of practice, the information systems and so on should be in place before the Bill becomes law and access is available on a nation-wide basis.
  In summary, we support Amendments Nos. 104 and 105 with the proviso that codes of practice, management structures and structures for the dissemination of information are in place before the Bill becomes law.
  Lord Whitty: My Lords, first, I wish to address the amendment standing in the name of the noble Baroness, Lady Miller. Amendment No. 105 would extend the terms of Amendment No. 104 to Parts II and III of the Bill. At first sight, it seems a very sensible amendment and certainly the spirit of it and the intention to require the Countryside Agency to provide a comprehensive guide to all of these matters seem highly desirable. However, there are some difficulties.
  Whereas Part I of the Bill is in effect the totality of law on access, Part II is only part of the law in relation to rights of way and, as my noble friend Lady Young implied, Part III is only part of the law in relation to conservation, biodiversity and AONBs. There is also the question of which is the authoritative agency in this respect. Perhaps I may say to the noble Baroness that I shall have another look at the matter to see whether there is a better way of achieving what she wishes in this context—that is, trying to combine existing duties on the Countryside Agency to provide such guidance,

  1463
  including the Country Code, and a clear statement that it must provide this code of conduct in relation to Part I and put it within a broader context of advice on the countryside. Perhaps I may speak to the noble Baroness between now and Third Reading about how best we could do that.
  The noble Baroness and the noble Lord, Lord Glentoran, asked about the Country Code and the national curriculum. We have already started on that in a sense. The Countryside Agency via the national forum has produced an access information plan which will produce a range of leaflets and information for use in schools. Further than that, stipulating what is in the national curriculum is probably beyond the scope of the Bill. Nevertheless, it is our clear intention to deliver that.
  Perhaps I may turn now to Amendment No. 138, tabled in the name of the noble Lord, Lord Rotherwick. I accept the spirit of what he intends to achieve. Certainly, the Government are committed to the need to ensure that, as far as possible, adequate information, including some of the particular information to which the noble Lord referred, is provided to the public and to other bodies. Furthermore, it is right that the guidelines for local authorities should be as transparent as possible.
  However, Amendment 138 is based on something of a misinterpretation of the scope of Clause 31. As the noble Viscount, Lord Bledisloe, pointed out, Clause 31 relates only to the role of national park authorities and the Forestry Commission as relevant authorities. The other issues to which the noble Lord's amendment refer do not relate to Clause 31. Guidance under this clause is likely to address such matters as the criteria for assessing applications for directions under Clauses 22 and 23 and the desirability of making such directions under paragraph 6 of Schedule 2.
  The broad aim of the amendment is correct, but I do not think that it is appropriate at this point in the Bill. The greater scope of Amendment No. 104, which will require the countryside bodies to take all reasonable steps to ensure that the public are fully informed of matters relating to the new rights, is a better of way of proceeding. That is because, in a sense, it will cover not only the standing rights but also what have been described by the noble Viscount, Lord Bledisloe, as transient rights. There is an obligation to try to maximise the information in various ways. That includes all means from websites to leaflets and notices in car parks. The obligation will be all-embracing.
  Again, I appreciate the intention behind the amendment to Amendment No. 104 tabled by the noble Baroness, Lady Miller; namely, a requirement on the countryside body to provide information on the totality of the Bill and on other aspects of countryside law.
  For the reasons I have given, and while I sympathise with the intentions that lie behind the amendment, I believe that these areas are covered largely by Amendment No. 104 or by existing legislation. I hope
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  that noble Lords will accept the reassurances that I have given as regards information and that the amendment will not be pressed.
  The amendments of the noble Lord, Lord Glentoran—amendments referred to earlier by the noble Lord, Lord Williamson of Horton, as "Baroness Byford's last fling", although I am sure that that was uncharitable and that the noble Baroness still has plenty of "flings" to go—relate to the question of timing and again to the requirement to produce information. They would require that the new right of access could not be brought into force until the agencies had fulfilled their duty under the "code of conduct" amendment. The requirement under Amendments Nos. 264A and 264B to produce a Countryside Code already exists under Section 86 of the National Parks and Access to the Countryside Act 1949 and will be augmented by the adoption of Amendment No. 104.
  The code of conduct will also provide information for those interested in the land about the use of discretionary closures under Clause 21 as well as restrictions and exclusions generally covered by Chapter II. The countryside bodies will need to have such systems in place before the right comes into effect. We do not anticipate any possibility of the right of access coming into effect before both the relevant regulations are in place and the code of conduct has been produced. I do not think, therefore, that it is necessary to put those restrictions on to the face of the Bill. I hope that, with those assurances, the noble Baroness or the noble Lord will not pursue the amendments.
  Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his reply. I understand that the Government wish to move in the direction of opening out the Countryside Code so that it will no longer matter which agency is responsible for it. What is important is that the public will be clear about what they can do, and where. If, between now and Third Reading, we can work towards that, I shall be very pleased. In the meantime, I beg leave to withdraw my amendment.
  Amendment No. 105, as an amendment to Amendment No. 104, by leave, withdrawn.
  On Question, Amendment No. 104 agreed to.
  Clause 20 [Interpretation of Chapter II]:
  10 p.m.
  Lord Whitty Lord Whitty moved Amendment No. 106:
  Clause 20, page 12, line 9, after ("Chapter") insert (", except section (Dogs on certain land)(1),").
  On Question, amendment agreed to.
  [Amendment No. 107 had been renumbered as Amendment No. 117A]
  Clause 21 [Exclusion or restriction at discretion of owner and others]:
  Lord Glentoran Lord Glentoran moved Amendment No. 108:
  Clause 21, page 12, line 40, at end insert—
  ("( ) Subject to subsections (2) and (6), an entitled person may, by giving notice to the relevant authority in accordance with regulations under section 30(1)(a), exclude or restrict access by virtue or section 2(1) to any land on a Saturday between August 11th and February 2nd where that land is used commercially for shooting.").
  The noble Lord said: My Lords, we now come to the different and perhaps slightly more thorny subject of restriction days. I shall refer to the total amount of time available for restrictions and also refer to Saturdays and Sundays.
  Before I speak to Amendment No. 108, I should like to thank the Minister for introducing Amendment No. 117 and for having moved so far with us. Perhaps I should not do so, but, regrettably, I am going to ask for more.
  Amendment No. 108 seeks to allow landowners to close land on Saturdays during the game shooting season, although it is flexible enough to allow closure for other legitimate reasons during this period. The amendment is necessary because the Bill, as drafted, does not allow closure of land on a Saturday during the main part of the shooting season without the owner going through the bureaucratic hurdle of applying to the Countryside Agency. The majority of game shooting takes place on a Saturday, mainly because this is when most people can take the opportunity to shoot, and also because, by law, game cannot be shot on Sundays.
  The importance of shooting to the economy and conservation of rural areas is crucial. More than £653 million is spent on shooting per year and much of the countryside is conserved by shooting interests. It is important to note that much shooting takes place during the harsh winter months. The public are much more likely to want to enjoy access to land during the spring and summer months. Furthermore, the amendment would not deter the public from enjoying access on a Sunday during the period 12th August to 1st February, something which is denied, by law, to shooters. The rural economy often depends on sporting activities such as shooting during the winter months, particularly as it is the very time when other tourists are less likely to visit remote areas.
  The amendment strikes an appropriate balance: it would allow those members of the public who wish to enjoy their right of access during the winter months to do so on Sundays; and it would not preclude land managers from shooting on the most popular day of the week during the statutory game season—that is, on Saturdays.
  During the Committee stage the Minister did not accept a similar amendment for three principal reasons. First, the Minister argued that the amendment was a way of extending the 28-day maximum period for the discretionary closure of land. This amendment does not allow that. Currently the Bill does not allow closure on Saturdays at all without
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  prior permission from the countryside authorities. The amendment would allow Saturday closures at the landowner's discretion, but without exceeding the permitted 28 days. Indeed, there are only 25 Saturdays between 11th August and 2nd February. I bear in mind that the Government have already given us four Saturdays.
  Secondly, the Minister was concerned that land could be closed for the whole of August, when most people take their holidays, or for seven weekends across the summer, restricting access for people whose only time for walking is at weekends. The amendment does not do that. Closure could only take place on a Saturday which, by law, is the only day of the weekend when shooting can take place. Walkers can enjoy their recreation on either day. It seems unfair that the Minister should argue against Saturday closures because he recognises that this is the time when most people enjoy walking at weekends. In doing so, he denies the same opportunity to those who enjoy shooting on the day when most people take part in the sport.
  It is also important to note that closure in the vast majority of cases will relate to small parcels of land. It simply would not be in the interests of landowners to close more land than is necessary as that would use up the quota on other parts of the land. Therefore, walkers on the whole will encounter only minor closures on a Saturday. That is our submission as regards Amendment No. 108.
  Perhaps I may now turn to Amendments Nos. 109 to 117. Amendment No. 109 concerns 28 days, excluding Saturdays, Sundays, and Bank Holidays in which, without having to cope with walkers, to carry out such operations as may be necessary to maintain the terrain, the livestock and wildlife. We suggest that that is not very much. To that there may have to be added matters such as lambing. I have listened carefully to the arguments on this from the government spokesman. I am still not clear whether the Government intend that the 28 days in the Bill should satisfy all normal land management needs, with extensions allowed only in exceptional cases. The fact that at this stage, and after all that has been said, Clauses 22(3)(c) and 24(4) are still in the Bill inclines me to believe that the Government intend the 28 days to be the normal closure entitlement for the year.
  In addition, I also understand that the area closed for any period of 28 days may vary. I see the noble Lord nodding. As an owner or manager one may have a series of 28 days referring to different acreage and parts of the estate.
  As regards Amendment No. 110, the wording as it stands seems to imply that there may be an intentional loophole whereby in certain unspecified circumstances another person having an interest in the land would deliberately not be counted or conceivably might be allowed their own 28-day portion. Either way, we believe that the law should not contain a doubt and the removal of the conditional conjunction is necessary.
  Finally, I refer to Amendment No. 116. Once again I wish to acknowledge what the Government have given in their own Amendment No. 117. I beg to move.
  Lord Whitty: My Lords, it may be for the convenience of the House if I speak briefly to the amendments standing in my name so that the Government's position is clear. Amendment No. 117, with the consequential Amendment No. 113, provides that, as part of the discretionary allowance of 28 days, a person entitled to that allowance should be able to restrict access or close their land without seeking further approval for up to four days at the weekend, although not on Saturdays between 1st June and 11th August and not on Sundays between 1st June and 30th September. That replaces the situation where none of the 28 days could have been used at weekends. It is a response to the anxieties expressed by a number of noble Lords both on the part of those who use the land for shooting and, more particularly, those who were concerned with the lambing season and who need to have a continuous period for land management purposes without the weekends being taken out and without the necessity of going through the process of making an application to the Countryside Agency.
  We believe that that is a sensible compromise between the needs of land managers and the interests of those wishing to benefit from the new right of access, for whom obviously weekends and the summer are particularly important. For example, as regards grouse shooting it will allow closure for up to four Saturdays from 12th August, which will give considerable flexibility and should help address concerns in the shooting community. For example, there are concerns about giving saboteurs advance notice of when shooting is to take place. Similarly, by including four weekend days within the total, it will allow closures for farmers and land managers for a continuous period of up to 19 days without having to go through the application. That is 19 days outside the summer holiday period. In effect, that should cover most lambing periods. All these are extendable by application to the Countryside Agency. So, for example, shooting and grouse moors could have more than four days, but those over and above four in that period would be related to a particular application.
  The Government's amendment represents a balance and reflects our determination to safeguard both the interests of walkers and the interests of those who manage the land. As well as entitling landowners to exclude or restrict access for up to four days at the weekend, the amendment also removes the regulation-making power set out in subsection (7). I should explain that. The Select Committee on Delegated Powers and Deregulation expressed the concern that that power could be used to allow weekend closure at one extreme or to restrict closure on any Friday, Saturday or Sunday at the other, or indeed Monday.
  What we had in mind in that provision was the ability to be flexible in the light of experience. However, we have considered the advice of the Select
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  Committee and we therefore propose to remove that power, which will leave greater certainty on how it might be used in future.
  I also underline in this context the point made by the noble Lord, Lord Glentoran, that these provisions could relate to appropriate parcels of land and that, therefore, there is considerable flexibility built into them. I commend them to the House.
  Viscount Bledisloe: My Lords, my Amendments Nos. 112 and 115 are in this group, so perhaps I may speak to them as well as to the amendment spoken to by the Minister.
  As the Bill stands, without the government amendment Clause 21 gives an owner the right to serve an exclusion notice closing the land for 28 days. But at present none of those days can be a Saturday, Sunday or Bank Holiday.
  A number of noble Lords pointed out in Committee that the world of nature and agriculture does not recognise weekends—that birds do not stop nesting and hatching and sheep do not stop lambing merely because it is Saturday or Sunday. No doubt joined up government will teach birds and sheep to recognise the calendar soon, but for the moment it has not achieved that. Therefore, the concept of a closure that suddenly stops at weekends is curious.
  In Committee the Minister opposed any attempt to extend the 28-day period, and in my amendments I totally accept that restriction. However, he recognised that within the 28 days some days could be at weekends. He was, however, worried that if one merely removed the provision relating to Saturdays and Sundays there was a danger that a landowner might use all of his 28 days over, let us say, 14 successive weekends or for the entirety of August, which he rightly pointed out is the main holiday month.
  I have therefore sought to spread the 28 days equally over weekends and Bank Holidays and nonesuch days. Eight Saturdays or Sundays in 28 days are a new proportion, and a Bank Holiday makes nine. I confess that nine seemed to me a remarkably silly figure and therefore my amendment suggests that 10 days can be a Saturday, Sunday or Bank Holiday. But if the noble Lord would give me nine, or even eight, I would settle for that. It is just that nine seemed an odd figure. Also, by means of a separate amendment, Amendment No. 107, I have sought to deal with the problem of holidays by saying that no more than 14 of the 28 days can be in August.
  My amendment is in no way specifically connected to shooting. The closure could be for any reason. It could be to protect breeding, to allow operations on the land, or whatever one wants.
  Amendment No. 117 to which the noble Lord has just spoken, on the other hand, gives only four days out of the 28 which can be either a Saturday or a Sunday. I do not understand how he can say that that is a proper balance unless he has a very curious approach to mathematics. If you have 28 days, and you allow Saturdays and Sundays, that must allow eight days, not four. It leads to the very curious

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  position that the Minister accepted that there would be only 19 continuous days. The noble Lord is half recognising that birds and sheep do not know about weekends, but he is not recognising that fact totally. I do not have any of this land, but if an owner wants 28 continuous days, why on earth should he not have that time? Why must he have a shorter period at weekends than at other times?
  Birds do not hatch; they sit for more than 19 days. Similarly, an entire flock of sheep does not lamb within 19 days. If the Minister is serious in his desire for proportion, he must allow eight or nine days out of the 28 to be weekends, or bank holidays. I fail to see any form ofjustification for his four days. Moreover, if one is using this time for shooting, or for a similar activity, I do not see why the days cannot all be Saturdays, with none of them being Sundays. As noble Lords have pointed out, one cannot shoot on a Sunday but a walker can just as well walk on a Sunday as he can on a Saturday. Therefore, I do not see why the landowner cannot have a discretion as to which of the days he uses as Saturdays or Sundays.
  My fundamental point is that the Minister has only gone half way and that he has stopped at a wholly illogical mathematical point. If he is to accept what he said he would accept in Committee—namely, that the 28 days should be spread fairly, but not disproportionately—he must allow at least eight or probably nine of the 28 days to be Saturdays, Sundays or weekends. He must not chop it off at a wholly illogical half-point.
  10.15 p.m.
  Lord Hardy of Wath: My Lords, perhaps I may comment briefly on the noble Viscount's points. Many people wish to spend their holidays in this country rather than take a package holiday to, say, the Costa Brava. Unfortunately, August is the month in England—the Scots are a little wiser—when children are not at school and families have to take their holidays. It would not be at all reasonable for half of August to be devoted to shooting, thus interfering with the family holidays of those who, wisely, prefer to take their vacations in this country. It is a beautiful country and the areas that those families may wish to walk through are similarly beautiful. I would not like to see a proportion of August devoted to that purpose. Indeed, it might encourage people to go abroad. I believe that they would be much healthier and happier in the United Kingdom.
  Lord Monson: My Lords, although the noble Earl has not yet spoken to it, perhaps I may express my support for his Amendment No. 114, which seems to me to be an extremely reasonable compromise. I should also like to express regret that the Government have got their Amendment No. 117 wrong, at least as regards Subsection (7)(a). I have no quarrel with the other two subsections.
  I can only suppose that the Government and their advisers have been watching too many Merchant Ivory costume dramas set in the closing years of the 19th century or the first decade of the 20th century, in
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  which the extremely rich individuals of no fixed occupation spend all their daylight hours every day of the week, except Sundays, hunting and shooting. They spend the hours of darkness in somewhat different indoor pursuits, but that need not concern us.
  Admittedly, I have no interest in the sort of land to which Part I of this Bill applies, but I do not suppose that the social patterns there are very different from those in the part of the world in which I live, where virtually all those who shoot are hard-working men, and, increasingly, women, who are fully occupied for at least five days a week and who, therefore, can shoot only on Saturdays. But even if that were not the case, beaters can be secured only on Saturdays because, in general, most of them have jobs from Monday to Friday inclusive. If Amendment No. 114, or something like it, is not accepted, it will be extremely unfair and unreasonable. Indeed, it may present enormous difficulties for many shooters.
  Baroness Carnegy of Lour: My Lords, I should like quickly to follow the noble Lord's contribution. My experience relates to Scotland, not England and Wales. I have in mind the farm where I live. I am not the farmer—I have not been for many years—but an increasingly important part of the farm's income is derived from the small syndicate which comes on Saturdays—eight Saturdays this year—to do rough shooting. It has nothing to do with grouse. It takes place from October to the end of January. To ask that farm to undertake shooting only on four Saturdays it has to take place on a Saturday for the reasons the noble Lord, Lord Monson, has given—would be wrong. The farm I mentioned is not affected by the provisions of the Bill, although it may be affected by other legislation which may be modelled on it. I do not think that it is fair to restrict shooting to only four Saturdays a year. I believe that the amendment of my noble friend Lord Peel would allow shooting on eight Saturdays.
  Earl Peel: My Lords, having heard what my noble friend and the noble Lord, Lord Monson, have said, I now feel obliged to speak to my Amendment No. 114, about which I have some doubts. I have doubts about my Amendment No. 114 and that of the noble Viscount, Lord Bledisloe, and that of my noble friend Lady Byford. Here I have some sympathy with the Government in that if these amendments were accepted one could have in effect eight, 10 or virtually any Saturdays consecutively closed during the various seasons that are mentioned in the various amendments. I can understand that that would be unacceptable to the Government.
  Having said that, the points that the noble Lord, Lord Monson, made are valid. I believe that many shoots operate only on Saturday because the people who organise them cannot take any other day of the week off. As the noble Lord said, it may be difficult to get beaters on a week day. From a commercial point of view—my noble friend's amendment specifically refers to this—many people who are prepared to pay for a one-off day's shooting can also do so only on a

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  Saturday. There is a problem here. I acknowledge that the amendments would create difficulties in terms of the access proposals.
  I wonder whether we could not reach a compromise whereby we could close the land in question on eight Saturdays—as my amendment suggests—during the season if we were to restrict that to, say, two Saturdays a month. I hope that I may have the noble Lord's attention for a moment. I do not know whether the noble Lord would regard as an acceptable compromise the suggestion to restrict the Saturday closure to two Saturdays a month with a closure of eight in total. As I say, we have a problem here. As noble Lords have said, there is no question about that. I am in two minds about the matter. I sympathise with the Government about not having closure on eight, 10 or 15 consecutive Saturdays. I think that that would be unreasonable. However, we must bear in mind that many people participate in shooting on Saturdays. As the noble Viscount, Lord Bledisloe, said, plenty of other activities also take place on Saturdays and Sundays. Will the Minister consider the compromise I have suggested?
  Baroness Miller of Chilthorne Domer: My Lords, we welcome the Government's move to allow 19 straight days for closure. That will certainly help smaller farmers. Many still have small farms and, as we know, life is tough for them. Those farmers do not have the option of closing different parcels of land.
  Noble Lords have rightly said that shooting is an important part of the rural economy. Some have asked for more closure days to allow shooting to take place. However, if one has a large landholding and one is running a shoot one can close off different parcels of land for each of the 28 discretionary days thereby gaining greater flexibility. I am concerned about the effect of the measure on farmers with smaller landholdings. I have tried to cover that point in my Amendments Nos. 126 and 128. The other point of principle—
  Earl Peel: My Lords, the noble Baroness rightly acknowledges the point about small farms. Presumably, she also acknowledges that there are some small shoots which do not have the flexibility of the larger shoots.
  Baroness Miller of Chilthorne Domer: My Lords, small shoots would face the problem. We await the Minister's response to the remarks of the noble Earl, Lord Peel, about small shoots. We welcome the government amendment.
  Lord Whitty: My Lords, I believe that no one spoke in strong support of the two amendments which extend the number of days from 28 to 38. I welcome that. We are talking of a period of 28 days without requiring the Countryside Agency to be involved. That 28-day period is now accepted as the appropriate totality. We are discussing here weekends within that period and the flexibility within that totality to parcel up
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  identifiable and appropriate pieces of land separately should that be sensible. The noble Earl, Lord Peel, recognises that that provides large shoots with the flexibility to have a shoot somewhere on a large piece of land during the shooting season. Likewise for most farming purposes, one could, if necessary, divide the land and have different packages of 19 days. So there is substantial flexibility even within that 28 days; and there is further substantial flexibility with the role of the Countryside Agency to which the noble Baroness referred.
  The issue is whether the restrictions relating to weekends and the summer period are appropriate. We believe that they are central. For the reasons about which the noble Earl, Lord Peel, spoke eloquently, the weekends during the summer are the periods when most people will want to take advantage of access. My noble friend Lord Hardy also made that point. If we were to accept Amendment No. 112, potentially a whole estate could be closed throughout July. The noble Viscount says that I disproportionately penalise Saturdays and Sundays. Yes, I suppose that I do, for the very reason that Saturdays and Sundays are the days on which the vast majority of the population will be able to take advantage of these new rights of access. It is, therefore, not sensible to have 10 Saturdays or Sundays out of the 28- day period. It is not even sensible to have what might be regarded as, roughly speaking, a proportionate number which would be six or seven. It is important that we restrict the numbers of Saturdays and Sundays which are provided under the discretionary right. I am not attracted, therefore, to any of the amendments which seek to increase those four days beyond what is provided for in my amendment.
  There is substantial flexibility. The noble Earl asks whether we can go further in relation to Saturdays, in particular with regard to small shoots. The Countryside Agency would make appropriate arrangements in such situations. If no flexibility was available to the owner of land used for shooting, I am sure that the Countryside Agency would take that into account in agreeing additional Saturdays that could be used during the shooting seasons. However, it would rightly take a more rigorous approach with those who had more flexibility. I recognise that consideration, but the Countryside Agency would be bound to address it.
  Our amendments deal with the most difficult aspects. We shall deal with the parcelling of the land further. The ability to apply to the Countryside Agency will provide sufficient further flexibility. The Government have made considerable concessions in response to the concerns expressed at earlier stages. I hope that noble Lords will accept my amendments and not press those that would go further.
  10.30 p.m.
  Lord Monson: My Lords, the Minister has not addressed the problems of small shoots. I accept that walkers and ramblers want weekend access, but would they not much rather have access on Sundays, when there is very little else going on, than on Saturdays,

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  when families often go shopping together? Could a compromise be reached under which no Sundays were allowed, but six or, better still, eight Saturdays were allowed? Will he think about that before Third Reacting?
  Lord Whitty: My Lords, in these days of seven-day shopping, families may go shopping on Saturdays or Sundays. The point is that, even now, it is only at weekends that the majority of families can use the new rights. Small shoots will be able to use four Saturdays during the main part of the shooting season. If there is no further flexibility and there is a need or an economic requirement for further shooting days, the Countryside Agency is likely to consider an application favourably. I suspect that most small shoots will not have more than four Saturdays between 12th August and the end of September. However, if they do, they have that facility.
  Lord Glentoran: My Lords, we have had another interesting and wide-ranging debate. I thank the Minister for his responses and for tabling Amendment No. 117.
  We do not quite have the right answer yet. The 28 days provision seems to be accepted across the House, although maybe grudgingly by some. However, there are one or two problems. I do not think that August is a problem. Most of the grouse moors in the North East and the North West are run commercially. It is a seven-day-a-week job at that time of year. Those who pay to shoot there are well able to go during the week.
  However, at other times of the year, wildfowling, pheasant shooting and general rough shooting on open land are enjoyed by groups of farmers and local people who all work from Monday to Friday. Only on Saturdays can they pursue their sport. Open season for rough shooting runs from the beginning of November until the beginning of February. The period may be a little longer or shorter for certain species. There are a lot of Saturdays in that period. Many of the shoots in my area—although it does not come within the auspices of the Bill—are used on most Saturdays, or at least every other Saturday. The people affected will be those least able to go through the bureaucratic process. They are the people who, without some form of direction and assistance from the Countryside Agency or whichever authority, are likely to be deprived. They are the people who, I suspect, all noble Lords would least like to consider were being deprived.
  I am sorry that I have spoken for rather a long time at the end of this debate. In summary, I believe that, with a little more thought before Third Reading, we can still reach a better compromise within the 28 days. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 109 to 112 not moved.]
  Lord Whitty Lord Whitty moved Amendment No. 113:
  Page 13, leave out line 14.
  On Question, amendment agreed to.
  [Amendments Nos. 114 to 116 not moved.]
  Lord Whitty Lord Whitty moved Amendment No. 117:
  Page 13, line 18, leave out subsection (7) and insert—
  ("(7) An entitled person may not under this section exclude or restrict access by virtue of section 2(1) to any land—

  (a) on more than four days in any calendar year which are either Saturday or Sunday,

  (b) on any Saturday in the period beginning with 1st June and ending with 11th August in any year,

  (c) on any Sunday in the period beginning with 1st June and ending with 30th September in any year.").

  On Question, amendment agreed to.
  Lord Greaves Lord Greaves moved Amendment No. 117A:
  Page 13, line 20, at end insert—
  ("( ) An entitled person may not under this section exclude or restrict access in such a manner as to prevent reasonable access by the public to other access land whether or not in the same ownership.").
  The noble Lord said: My Lords, in moving Amendment No. 117A, I wish to speak also to Amendments Nos. 129 and 133 which are in the same group.
  These amendments refer to various types of closures, restrictions and exclusions. Clause 21 deals with discretionary closures which your Lordships discussed recently. Clause 22 refers to directions for restrictions and exclusions for the purpose of land management. Clause 24 deals with directions for the purposes of nature conservation and historic features.
  The problem which the amendments seek to address is the same in each case and is one which came to light as a result of consideration of discussions during and after the Committee stage. Closures of land for perfectly legitimate purposes could lead to the blocking of access to other access land which is not the subject of restrictions or exclusions. In other words, people who turn up at the usual access point to access land in order to go on to a large area of hill or moorland may find that their access is blocked because of a temporary exclusion on the land in between. These amendments seek to provide that, wherever possible, reasonable access is provided to access land beyond that which is the subject of a closure or direction.
  Amendments Nos. 129 and 133, which relate to Clauses 22 and 24, seek to place a duty on the relevant agency to consider, in making a decision, the matter of reasonable access through the land in respect of which a direction has been applied for. That is not to say that the agency will say, "No, you cannot have a direction on land"; it is to say that the agency must consider how the problem of access through, by or past that land can be tackled in order to avoid the closure of much larger areas of land other than that for which closure has been either requested or is required.
  I turn to Amendment No. 117A which refers to the discretionary closures under Clause 21. Because such closure decisions are made by landowners and not by the relevant agency, the amendment seeks to place a duty on the landowners to ensure that reasonable access can be made available, again either across their

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  land or in some other way, to the access land which otherwise would be blocked. It has been suggested in some quarters that landowners who are hostile to the Bill may try to use this provision to block access to much larger areas of land than are reasonably covered under the 28-day restrictions.
  I am not one of those people who believes that most landowners will be hostile to the Bill once it is passed. I believe that the vast majority of landowners, like the vast majority of walkers and climbers who go onto the land, will behave in a thoroughly reasonable way, because that is how people usually behave when faced with a situation.
  Nevertheless, just as I accept that there will be a small minority of people going onto land who may misbehave, as has been discussed by your Lordships at some length today, it is also quite possible that there will be a small minority of landowners who will seek to use that provision, perhaps by closing different and smaller pieces of land successively to block access to a much larger area of access land for quite a long period of time.
  Most areas of access land, of course, will have several points of access and several routes onto it. And so that may be a problem which will not occur in most places. It has been suggested by some cynical people that, if somebody had a hill which was all access land, then the owners could successively close concentric circles round that hill and prevent anybody ever getting to the summit. Far be it from me to suggest that anybody would ever behave like that.
  But there is a problem. It is not really a problem of principle; it is a problem of the practical working of the Bill. Whatever happens, whatever form this Bill ends up in, we all agree in this House that it must work in practice. It would be sensible to make arrangements and to write into the Bill the provision that this particular potential problem must be looked at, either by the Environment Agency or the appropriate Welsh body in the case of directions or by landowners themselves in the case of Section 21 closures. I beg to move.
  Lord Dubs: My Lords, I should like to speak to Amendment No. 117B standing in my name, which has broadly similar aims to the three amendments just moved by the noble Lord.
  Amendment No. 117B will enable the Secretary of State to require the exercise of discretion under Clause 21 to relate to land the boundaries of which are determined by regulations. That would have two benefits. First, it would help both walkers and those managing the land to know the area over which closures or restrictions applied. It could, for example, require those entitled to discretionary closures, in notifying the Countryside Agency of their intention to close land under Clause 21, to show the area of land closed by following physical features shown on a map of the area affected.
  Secondly, if the regulation-making power is needed, it would help prevent possible abuse. Although I am sure, as was the noble Lord, Lord Greaves, that the
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  vast majority of landowners will be responsible and reasonable, there may be a few who simply wish to exclude public access over the largest possible area for the longest possible time.
  As it stands, I believe that Clause 21 could be used to make arbitrary closures of strips of land, which serve no purpose other than to exclude access to much larger areas of adjacent land. Regulations made under my amendment could, for example, ensure that only parcels of land which are demarcated by physical features, such as walls, streams or fences, could be notified as closed under Clause 21.
  My amendment would not require the Secretary of State to make regulations, but he could do so if it were helpful to ensure that land subject to closures was properly identified, or if there were indications that the discretionary right to restrict access was being abused in the way which I have already described.
  I hope that the Minister, will agree that this modest amendment would be a useful and desirable addition to the Bill.
  Baroness Young of Old Scone: My Lords, I am confused. It may be the advanced hour or it may be that there is a degree of inconsistency between Amendment No. 133 and Amendment No. 129, which the noble Lord seemed to present in a way which implied that they are both designed to meet similar ends, in spite of the fact that they refer to different reasons for exclusions and restrictions.
  I must confess that the interpretation which he gave to his amendment was not that which I read into it when I read it initially. I believe that Amendment No. 133 is capable of quite considerable misinterpretation and, therefore, is rather dangerous. I was extremely alarmed by Amendment No. 133 which seemed to provide that relevant authorities could refuse to grant exclusions or restrictions even where they were necessary for the protection of flora and fauna, if that meant that there was no equivalent access land available elsewhere.
  That seems to be totally against the principles we have heard enunciated in the Bill; that is, that nature conservation interests must not be damaged for the purposes of providing reasonable access. I hope that we can have an assurance, first, that this was not the intention of the amendment and, secondly, as it is capable of being interpreted in a different way, perhaps it is not the right amendment to adopt. I would not want to see anything on the face of the Bill that permitted any horse trading between the relative merits of access and wildlife or anything that implied it was acceptable for wildlife conservation interests to be sacrificed for other benefits.
  10.45 p.m.
  Baroness Miller of Chilthorne Domer: My Lords, from these Benches, perhaps I may assure the noble Baroness that that was not the intention in tabling Amendment No. 133. The amendment states:
  "shall have regard to the extent to which it is possible to provide reasonable access".

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  Clearly, if the closure was because the land was sensitive in wildlife terms, the conclusion would have to be that it would not be possible. I can perhaps accept that our wording is not perfect, but we were not seeking to achieve anything damaging, such as the noble Baroness suggests. However, we are willing to look again at the wording of the amendment.
  Lord Glentoran: My Lords, I rise to speak both ways, for a change. I fully understand the desires of the noble Lord and have much sympathy with them, particularly coming from where he does and from where I might have come from. However, as the noble Baroness, Lady Young, pointed out, there are dangers in having the amendments on the face of the Bill, particularly Amendment No. 133.
  I assume that part of the process of applying for a restriction order will be by way of explanation, discussion and negotiation with the access authority. When an application has been received and is being discussed, it will become apparent to a local authority that the effect of closing a particular piece of land will be to debar people using it. I would have faith in the access authority being wise to that and attempting to negotiate an alternative route.
  I am probably making the Minister's speech. If I am, forgive me. I feel that there is no need for the amendments on the face of the Bill because these matters are adequately covered.
  Viscount Bledisloe: My Lords, in answer to the noble Baroness, Lady Young, the noble Baroness, Lady Miller stated that Amendment No. 133 requires the relevant body only to have regard. However, Amendment No. 117A states absolutely that you cannot exclude or restrict if the result is that it prevents access to somebody else's land. The noble Lord, Lord Greaves, shakes his head. The amendment states:
  "may not under this section exclude or restrict access in such a manner as to prevent reasonable access by the public to other access land".
  So, if it does prevent access to other access land in somebody else's ownership, it cannot be done.
  Under this clause, the owner has an absolute right to give notice and to state, "These are my 28 days". I do not understand how the clause comes into effect. Although it is perfectly reasonable for the owner to do that in relation to his land, it might stop people getting on to some other land. He has given his notice and that is enough. The noble Lord, Lord Greaves, appears to contemplate that after an owner has given his notice, somebody will return and say to him, "Don't you realise that if you give this notice, people will not be able to get on to Mr Blogg's land next door; therefore your notice is invalid?"
  I do not understand how that works. Nor do I see why an owner who wishes to exercise his 28 days for his own purposes should suddenly be prevented from so doing because it prevents people getting on to somebody else's land. With respect to the noble Lord,
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  Lord Greaves, I suggest that Amendment No. 117A is wholly unworkable. Even if it was workable, it would be wholly unfair.
  Lord Whitty: My Lords, I am grateful to the noble Lord, Lord Glentoran. Indeed, he gave part of the ministerial speech in relation to Amendments Nos. 129 and 133. While I did not see quite such a sinister implication in Amendment No. 133 as did my noble friend Lady Young, I can see that it could arise. That would be an overriding consideration whereas I believe the noble Lord wanted it to be only one of the considerations to be taken into account.
  The considerations under Amendment No. 129 in regard to reasonable access to other access land, are already a relevant consideration. Likewise, in relation to Amendment No. 133; that too can be taken into account. So on both counts those amendments are not necessary; those consideration can be taken into account.
  However, the basic point raised by the noble Lord, Lord Greaves, is important. There is a problem in that if we accept, as we do, that different parcels of land in one ownership can make applications for restriction or discretionary restriction at different times, then it is important, first, that that is not abused in a way that might restrict access to access land in general; and, secondly, that it is evident to those who wish to use the land as well as to the owners which land is involved. It is therefore important to find a way of describing the land and of ensuring that it is not used in the way the amendment of the noble Lord, Lord Greaves, seeks to address.
  The amendment uses the term, "reasonable access". That could create fertile ground for dispute. It is also somewhat absolute in that it would override other considerations, though the noble Lord shook his head when that was asserted by the noble Viscount, Lord Bledisloe. However, it could be read that way. Nevertheless, we have to find a way of dealing with the problem the amendment addresses.
  I would prefer going down the road of my noble friend Lord Dubs. His amendment recognises the need to provide some degree of flexibility and his Amendment No. 117B would allow regulations to be made to ensure that the discretion was applied in relation to properly identified units. That would give a clarity and a certainty to the exercise of discretion under Clause 21. That does not necessarily mean we expect specific regulations; clearly, as the amendment of the noble Lord, Lord Greaves, provides, a number of negotiations could take place and there is a possibility of direction in those areas. But were difficulties to arise in either the abuse of the power or in the identification of the land concerned, it is important to have the reserve power to require the exercise of discretion in order to identify the units of land to which the power applies. That would help any landowner who might seek to abuse the flexibility while at the same time provide the basis for certainty as to what the landowner could do and to which pieces of land the restrictions apply at any given time.

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  Therefore I favour the approach of my noble friend Lord Dubs and am prepared to accept his amendment.
  Lord Greaves: My Lords, I thank the Minister for those comments. In relation to Amendments Nos. 129 and 133, if the relevant agency—essentially the Environment Agency and not the access authorities—behaves in a sensible way, takes account of these problems and understands that access may be required through or past land which is subject to a direction, then I accept that amendments on the face of the Bill are not required. However, I felt it was important to raise the matter.
  As regards the discretionary closures, I am grateful for what the Minister has said. I shall read that in Hansard carefully and in the meantime I am prepared to withdraw my amendment and support that tabled by the noble Lord, Lord Dubs.
  Amendment, by leave, withdrawn.
  Lord Dubs Lord Dubs moved Amendment No. 117B:
  Clause 21, page 13, line 20, at end insert—
  ("(8) Regulations may provide that any exclusion or restriction under subsection (1) of access by virtue of section 2(1) to any land must relate to an area of land the boundaries of which are determined in accordance with the regulations.").
  On Question, amendment agreed to.
  Lord Whitty Lord Whitty moved Amendment No. 118:
  After Clause 21, insert the following new clause—

  DOGS ON CERTAIN LAND
  (" .—(1) The owner of any land consisting of moor managed for the breeding and shooting of grouse may, so far as appears to him to be necessary in connection with the management of the land for that purpose, by taking such steps as may be prescribed, provide that, during a specified period, the right conferred by section 2(1) is exercisable only by persons who do not take dogs on the land.
  (2) The owner of any land may, so far as appears to him to be necessary in connection with lambing, by taking such steps as may be prescribed, provide that during a specified period the right conferred by section 2(1) is exercisable only by persons who do not take dogs into any field or enclosure on the land in which there are sheep.
  (3) In subsection (2) "field or enclosure" means a field or enclosure of not more than 15 hectares.
  (4) As respects any land—

  (a) any period specified under subsection (1)) may not be more than five years,

  (b) not more than one period may be specified under subsection (2) in any calendar year, and that period may not be more than six weeks.

  (5) A restriction imposed under subsection (1) or (2) does not prevent a blind person from taking with him a trained guide dog, or a deaf person from taking with him a trained hearing dog.").
  On Question, amendment agreed to.
  [Amendments Nos. 119 and 120 not moved.]
  Clause 22 [Land management]:
  Earl Peel Earl Peel to move Amendment No. 121:
  Clause 22, page 13, line 21, leave out ("may") and insert ("shall").
  Baroness Byford: My Lords, I rise to speak to our Amendments Nos. 123 and 124. It may be for the convenience of the House if I say that I shall not move Amendment No. 127. Amendments Nos. 123 and 124 speak for themselves. Amendment No. 123 suggests that utilisation is necessary for the future commercialisation of the land management practices. During the weeks in which we have been debating the Bill, we have been looking at the way in which land is currently managed and at future land management practices. Amendment No. 123 is aimed at that.
  Amendment No. 124 is intended to cover the many countryside schemes which are already in place but which might not fall within the ambit of the Bill. It also recognises that future land management may differ from existing practices. We need to be able to have due regard to the preservation of flora and fauna, or geological and physiological features.
  I am speaking to Amendments Nos. 123 and 124 and I shall not move Amendment No. 127. I apologise, I am speaking to Amendment No. 121, which turns "may" into "shall". That makes the provision more positive and I apologise to noble Lords for not making that clear. In fact, I am not speaking to that amendment because it stands in the name of my noble friend Lord Peel.
  I need to start again. Amendment No. 121 is my noble friend's amendment but when it was called I rose to speak to the others. With the acceptance of the House, I shall sit down and let my noble friend Lord Peel move his amendment.
  Earl Peel: My Lords, I think I am in order. Amendment No. 121 is the first in the group, so with the leave of the House I shall speak to Amendments Nos. 121, 122 and 125.
  With regard to Amendment No. 121, Clause 22 currently provides that the authority, the Countryside Agency, the CCW and the national park authorities may grant a direction when they are satisfied that it is necessary for land management purposes. But, surely, if the authority is satisfied that a direction is necessary it must make the direction. Otherwise, it would be failing to respond properly to the requirements of the owner to manage the land.
  In Committee, (in the debate on Amendment No. 243 on 5th October, at col. 1774 of the Official Report) the Minister said that consent for directions would not unreasonably be withheld. I suggest that the logical response is to provide that the authority "shall" make a direction where it is satisfied that the exclusion or restriction is necessary. As we have heard many times during debates on the Bill in your Lordships' House, the closure periods for land management purposes are an essential safeguard under the Bill and the system cannot be compromised. Surely, if the access authority decides that such a request for closure is appropriate,

  1481
  why should there then be an element of discretion? That seems to me to be illogical and Amendment No. 121 seeks to remove that contradiction.
  I turn next to Amendments Nos. 122 and 125. Despite assurances from Ministers that access authorities may take an enlightened approach to requests for closures under Clause 22, some comments that I have heard indicate that on occasions that ideal may be questioned. It is also possible that the various access authorities will take a rather different approach among themselves. The purpose of Amendment No. 122 is to remove "necessary" and insert "expedient".
  However, there is another reason why I believe this may be necessary. I have been alerted by the agreement drawn up, between English Nature and the Countryside Agency entitled Nature Conservation of Access Land. I believe that my amendment has a bearing on the agreement for the following reasons. In the agreement both organisations explain their statutory roles and how they will affect the workings of the Bill. The agreement states that English Nature is the statutory advisory body on nature conservation. In the context of the agreement much is written about closures for the purposes of nature conservation. I very much welcome that. I raised this matter several times in Committee and sought an assurance that the Sandford principle would prevail. This agreement clarifies the position.
  The agreement also states that the Countryside Agency is responsible for taking action for the economic and social well-being of the English countryside However, there is nothing in the agreement to say that closure restrictions will be imposed specifically for those purposes; it refers only to nature conservation purposes. I realise that the agreement is related specifically to nature conservation access land and not necessarily to other matters such as the economic and social well-being of the English countryside. None the less, I remain concerned about the absence of similar guidance from the Countryside Agency to ensure that access land is not permitted to compromise land management and local economic well-being. It may be that something to that effect has been issued by the Countryside Agency but I am not aware of it.
  This raises a suspicion in my mind as to how the access authorities will view requests for closure orders when dealing with economic matters. I believe that if "expedient" replaces "necessary" it is more likely that the access authorities will take a realistic and practical approach to this very important part of the Bill. I beg to move.
  11 p.m.
  Lord Hardy of Wath: My Lords, I am slightly concerned about some of these amendments. I refer first to Amendment No. 124. It could be argued that to conserve very large areas one would not allow people access at all because they might injure wildlife. It has some similarity to the amendment which I moved last week. (I lose track of the time because of late sittings.) I suggested that it should be possible to prevent access
  1482
  in nature reserves for the purpose of protecting endangered species. The Government did not accept the amendment and said that adequate capacity existed through an approach to English Nature. It may be desirable for those responsible to have a little more capacity to act immediately, without having to proceed through another agency, at least in emergencies. However, it would be interesting to hear the Government's response to the amendment.
  I turn to Amendment No. 124A. The point in that amendment which I found rather striking is that it would refuse access to prevent harm to an animal. We have been talking about preventing access in order that these animals can be shot. We cannot have one and not the other.
  The Government have made substantial concessions. I have sympathy with those who seek to defend the rural interest; those who say, "Save country sports". But if those who are practising country sports then make life difficult for the urban majority—for example, by saying to responsible people who want to keep their dogs on a lead that they cannot even go on the land—they will stimulate a hostility that may not have existed. Those involved in country sports, as they look at the Bill and seek to persuade the Government to make further concessions, may be acting in a way that is disadvantageous to their interests and irritating to those in urban communities who respect their role and recognise its importance but also want to enjoy the countryside.
  Baroness Byford: My Lords, I hope I am coming in at the right moment. I apologise to my noble friend Lord Peel. I do not think I have ever been as good-looking as my noble friend and I am sorry that I rose to speak before him.
  Perhaps I may turn to the amendments standing in my name, Amendments No 123, 124 and 127. I do not intend to move Amendment No. 127. Amendments Nos. 123 and 124 refer to the position of owners or occupiers who may decide to diversify, either commercially or by signing up to one of the Government's stewardship schemes. We discussed the matter earlier. I should like to reassure the noble Lord, Lord Hardy, that my amendments were not intended to make land inaccessible to people. I apologise if they had that interpretation. That was not the purpose behind them.
  I turn to Amendment No. 124. There is no formal right of application in the Bill for owners or occupiers to seek closures or restrictions on conservation grounds. Some conservation bodies may own access land; for example, the RSPB, the Wildlife Trust and the National Trust. Other private owners may wish also to secure closures or restrictions for the purposes of protecting wildlife. That does not refer to the wildlife that the noble Lord, Lord Hardy of Wath, has just referred to which are protected to get shot; it refers to the wildlife that are protected to be protected. While such owners may be able to request closures, the lack of a formal right to apply means that there is no corresponding appeal against a refusal to grant such an application.

  1483
  The effect of the provisions is that the case for closures on conservation grounds could be given less overall weight than the case for closure for land management purposes. That lack of balance should be redressed. The amendment would widen the definition of land management under Clause 22 to include closures to conserve important features of the land. The right for an application for occupiers to close on nature conservation grounds would then be accompanied by a right of appeal under provisions related to the land management closures.
  If there was a separate right to apply for conservation closures outside Clause 22, it would need a separate right of appeal. Sweeping it under the existing appeals provision by widening the scope of the existing right of application under Clause 22 represents the best way forward, and hence our amendment.
  Viscount Bledisloe: My Lords, I rise to speak to Amendments Nos. 124A, 124B and 125A. Perhaps I may make a general inquiry of the Minister about Clause 22. Noble Lords on the Government Front Bench have frequently relied on the existence of Clause 22 as a reason for arguing against other amendments which have been put forward. My fear—which may be a mere lawyer's fear—in relation to Clause 22 is that it will be interpreted as applying only to very specialised situations; for example, where an occupier would come within Clause 22 only if his case was very different from that of other landowners.
  From what noble Lords on the Government Front Bench have said, that is not their intention. They regard Clause 22 as being very wide in giving the agency the power to make these closures in any circumstances where it considers it appropriate. I should be grateful if the Minister could reassure us that there is no such restriction as I fear and that every application can be approached without a presumption either way and certainly without a presumption that an occupier would come within Clause 22 only if his case was very special.
  Amendments Nos. 124A and 125A enlarge the number of reasons for which the orders may be made to include the prevention and diminution—I apologise for the fact that the Public Bill Office has misspelt "diminution": it is not my fault—of harm to the land, to people or to animals in order to allow cases to be dealt with where some kinds of access are likely to disturb or frighten people, to disturb or frighten and thereby injure animals or to cause damage. If those matters were included as grounds for closing the land if the access authority thought it appropriate, that would very much reduce the worries that have given rise to earlier amendments.
  Amendment No. 124B deals with a separate point. It seeks to make it plain that closure under Clause 22 can relate to specific hours of the day rather than to specific periods of the year; for example, it could be used to control night access. If the Minister can give me a categoric assurance that that power already
  1484
  exists, I shall be happy not to press the amendment. It is important that that should be clear on the face of the Bill. It has been inherent in what Ministers have said in the past that the clause should be enlarged to make it plain that a closure order could relate to a certain part of the day or to specified days.
  Baroness Miller of Chilthorne Domer: My Lords, I rise to speak to Amendments Nos. 126 and 128 which stand in my name. The purpose of the amendments is to explore whether the considerations to which the relevant authority should have regard when it is considering whether to grant exclusions or restrictions are adequate. The amendments are tabled to help in particular the small farmer who may need to apply for extra restrictions at weekends. It is possible that a small farmer's partner and children will be fully occupied during the week in other forms of employment or as students. For some purposes of land management it may be reasonable for that person to apply to close at weekends.
  As I read Clause 22(3), the factors to which the relevant authority should have regard do not include the opportunities available to the applicant in question to undertake the land management required. Although paragraph (b) refers to,
  "the extent to which the applicant has exercised or proposes to exercise that right",
  that does not take into account the issues I have raised. Paragraph (c) refers to,
  "the purposes for which he has exercised or proposes to exercise it".
  However, people would be able to say, "Well, that is a good purpose, but you can do it at some other point in the week".
  On 30th October, the Government wrote to my noble friend Lady Hamwee in response to these concerns. They stated that, in their view, nothing in Clause 22(3) would interfere with the discretion already in the gift of the relevant authority. The letter went on to say that the Government did not believe that these amendments were necessary. However, I should like to establish on the record whether the relevant authority can have sufficient regard to an individual case, in particular in relation to the small-scale applicant.
  11.15 p.m.
  Lord McIntosh of Haringey: My Lords, I do not know quite how many issues are before the House at the moment, given the number of amendments tabled here. However, perhaps I may start by assuring the noble Viscount, Lord Bledisloe, about Clause 22 in general. It is our intention—and the Bill provides—that applications made under Clause 22 will be considered on their merits. Nothing in Clause 22 provides that such applications would have to be wholly exceptional or different from other applications. Having said that, which I believe would apply to all the amendments tabled to Clause 22, I shall go on to deal with them individually.

  1485
  Amendment No. 121, taken together with Amendments Nos. 122 and 125, would require the relevant authorities to make a direction for a land management closure upon application by someone with an interest in the land, whenever it was expedient for the management of the land. We do not expect that landowners will often need to apply for additional closures on land management grounds. The 28 discretionary days—which can be applied to any parcel of land—will usually be enough. Applications may need to be made if the closure or restriction is required on certain weekend days or bank holidays, or if the 28 days have been used on a particular parcel of land.
  It is important that the relevant authorities should have a clear discretion in making such directions so that they can take into account all the facts of the case. Again, this forms a part of my response to the general question put by the noble Viscount, Lord Bledisloe. If a landowner has used up all of his 28 days simply because he does not want walkers on his land, then it is reasonable that the authority should take that into account in deciding whether to give a direction under Clause 22. However, if he has made good use of his discretionary closures, we expect the relevant authority to look favourably on the application and to be likely to make the requested direction.
  This means that we are certainly prepared to be flexible and we would expect an authority to judge cases on their merits. What we do not want is to introduce amendments to the Bill which would, by stealth and without good reason, increase the 28 days to 38 days or any other period. Of course, if the authority does not make a direction in accordance with the application, the applicant will have a right of appeal to the Secretary of State or to the National Assembly.
  We have also made it clear that the relevant authority should restrict access only as far as is necessary for the purposes outlined in the application. If restricting access to paths would be sufficient to enable the landowner to carry on activities outlined in his application, then that is what should be directed—not a total exclusion. The term "expedient" implies that the direction could be for more than is strictly necessary for the purposes of the application. At least, that is what I think it means; either it means nothing or it means something wider than "necessary". We do not accept that access should be excluded or restricted unless it is necessary for the purposes set out in Chapter II.
  Earl Peel: My Lords, before the noble Lord continues with his response, would he be kind enough to pass comment on the question I raised about the agreement between English Nature and the Countryside Agency where they made it perfectly clear that the Sandford principle would apply for nature conservation purposes? However, to the best of my knowledge, I do riot think that the Countryside Agency has released any form of statement declaring, in effect, that closures for land management for the
  1486
  economic well-being of a local area would be seriously considered. That seems to me a little one-sided. Can the noble Lord comment on that?
  Lord McIntosh of Haringey: My Lords, I shall move on to the points raised on nature conservation when dealing with another amendment. Perhaps I can respond to the question put by the noble Earl at that time.
  Amendments Nos. 123, 124, 124A and 125A would expand on the use of the expression "land management". Clause 22 is vital to the interests of those involved in managing land—that is what it is there for. We have made clear our intention that it should be treated flexibly. It should take into account less common or new forms of land management activity. We want Clause 22 to be flexible, responding to the legitimate needs of land managers. We believe that it should be interpreted generically, including both the active management of the land and also its use for events and activities not traditionally associated with the use of land for agriculture or country sports. Such activities include car rallies and pop festivals, as well as ploughing matches and sheep trials.
  That is not to say that we think that directions would always be needed, but we agree that such purposes would be eligible for directions under Clause 22. We do not see any need for Amendment No. 123, since its aims have already been achieved.
  It will be for the Countryside Agency and the Countryside Council for Wales to draw up criteria to indicate the kinds of activity which would be included under the term "land management". Both bodies will be able to issue guidance to other relevant authorities, and they will wish to consult on the criteria. I should add that the relevant authorities will not be able to make a direction under Clause 22 if it would be possible to make a direction for the same purpose under Clauses 23 or 24—that is, for the purposes of avoidance of fire risk, safety, nature conservation or heritage preservation.
  That brings me to Amendment No. 124, which would allow for directions under Clause 22 to be made also in the interests of conservation of wildlife. Clause 24 already allows that. There is no formal right to apply for a restriction or closure on nature conservation or heritage grounds, but anyone can ask the relevant authority to consider doing so. The conservation bodies will advise the relevant authority on the merits of a direction under Clause 24, and the relevant authority must have regard to advice given to it by the conservation body.
  As to the issue raised by the noble Earl, Lord Peel, I shall have to write to him about it rather than respond straightaway, unless rescue comes within the next few minutes.
  Amendment No. 124A goes wider than both Amendments Nos. 123 and 124. It would provide that directions could be made under Clause 22 additionally for the purposes of,
  "the prevention and diminution of harm to the land".

  1487
  To a great extent, this is already covered by Clause 22. But it would also seem intended to allow for directions to be made for the purposes of nature conservation and generally for the purposes of security and perhaps privacy. The word "diminution" in this context would mean that any application could be successful if it were able to show the likelihood of some diminution in "harm", however slight.
  Having made our concession about excepting land within 20 metres of a dwelling, we believe that directions under Clause 22 should be justified for the purposes of land management, and that this is wide enough to cover all reasonable requirements.
  Returning to the guidance issued by the Countryside Agency, the agency will be consulting the National Countryside Access Forum over criteria and guidance for land management closures. I hope that that answers the question of the noble Earl, Lord Peel.
  Amendments Nos. 126 and 128 concern the problems of small or part-time farmers who can undertake land management activity only at weekends because they work during the week. Clause 22(3) of the Bill already ensures that the relevant authority has a sufficient discretion to take these matters into account. Where the farmer has exhausted or otherwise made provision for the use of the discretion to close at weekends, and has good reasons for undertaking the work at weekends—for example, because he has another job during the week—it would be entirely proper for the relevant authority to make a direction excluding or restricting access. As to the letter that my noble friend Lord Whitty sent to the noble Baroness, Lady Miller, on 30th October, yes it is true that under paragraph (c), which refers to purposes, this is a legitimate purpose and could well be the basis of an application. There may be other cases also where the limited opportunity to restrict access at weekends under Clause 21 means that it is necessary for the authority to make directions under Clauses 22, 23 or 24, restricting access at the weekends. Nothing in Clause 22(3) or any other provision of Chapter II prevents the exercise in this way of the relevant authority's discretion. We do not believe that Amendments Nos. 126 and 128 are necessary or desirable.
  Amendment No. 124B in the name of the noble Viscount, Lord Bledisloe, would amend Clause 22, making it explicit that the closure might apply to a specified part of the day or of certain specified days. I can assure the noble Viscount that the specification that land may be closed for a specified period does not mean a specified period of a year. There is nothing in the clause to prescribe that a specified period must, as a minimum, constitute a complete day. So the amendment is not necessary. If access at night presents problems for land management or nature conservation, then restrictions on closures may be approved under Clause 22 or Clause 24.
  Finally, I shall deal with Amendment No.127. The answer is the same as to an earlier amendment. If a landowner has used up all of his 28 days simply
  1488
  because he does not want walkers on the land, then it is reasonable that the authority should be able to take that into account in deciding whether to give a direction under Clause 22.
  Baroness Byford: My Lords, I did not speak to Amendment No. 127. I withdrew it.
  Lord McIntosh of Haringey: My Lords, excellent! Here endeth the first lesson.
  Earl Peel: My Lords, before the noble Lord sits down, I apologise to him if I am wrong. I am not sure that he responded to my Amendment No. 121.
  Lord McIntosh of Haringey: My Lords, I responded to Amendment No. 121 together with Amendment Nos. 122 and 125 right at the very beginning. That is when I first made the point about not increasing the 28 days by stealth. In other words, it is proper for the authority to consider whether the application is being made because the first 28 days were used simply on the basis that the landowner did not want walkers on his land.
  Earl Peel: My Lords, my amendment substitutes the word "may" for "shall". The relevant part is,
  "if the authority are satisfied that the exclusion or restriction under this section of access by virtue of section 2(1)…is necessary".
  It seems to me rather peculiar that it is only "may". Having made the decision or having decided that it was appropriate, I would have thought that it would only be appropriate for it to carry it out and the word "shall" would be appropriate.
  Viscount Bledisloe: My Lords, perhaps I may add to that. The noble Earl's point is already governed by subsection (3). In deciding whether it is necessary, one looks to see for what purposes he has used the existing 28 days. Having decided that he has used them properly and needs more, surely the noble Earl, Lord Peel, is right to say that it should be "shall". I believe that the Minister's point deals with that.
  Lord McIntosh of Haringey: My Lords, one has to read Amendment No. 121 with Amendment No. 122 in particular as well as Amendment No. 125 unless the noble Earl really means to move Amendment No. 121 without moving Amendment No. 122. I appreciate that they are separate amendments, but the effect of what the noble Earl wants is to change Clause 22(1) to say,
  "the relevant authority shall by direction".
  The end of the same sentence is that it is "necessary" or "expedient". The noble Earl spoke to the amendments together and I responded to them together.
  Lord Brittan of Spennithorne: My Lords, does not the noble Lord agree that they are separate amendments and that it is perfectly open to the Government to say that they do not accept the point about substituting "expedient" for "necessary" for the reasons given by the Minister, but that they do accept

  1489
  Amendment No.121 because once the relevant body has found that what is asked for is necessary, it jolly well should do it. It would be perfectly open to the Government to say that they accept Amendment No. 121, but not the other. That is what I invite them to do if they are not persuaded on the expediency point.
  11.30 p.m.
  Lord McIntosh of Haringey: My Lords, I responded to the way in which the amendments were spoken to—as a coherent whole. I accept that the noble Lord is right and that I could separate them out. If the noble Earl, Lord Peel, wishes to do so, then let me say that I do not accept Amendment No. 121 or Amendment No. 122—because this retains the discretion for the authorities.
  Earl Peel: My Lords, the point is that they have the discretion. Once they have made the decision that a request for closure is appropriate, surely they should then carry it out, and "shall" should be substituted for "may". It could not be simpler.
  Lord McIntosh of Haringey: My Lords, I have been in this House for nearly 18 years and I do not think there has been a month when there has not been a "may"/"shall" debate. Relevant authorities must have a clear discretion to take into account all of the circumstances in each case. "May" makes that clear.
  Lord Brittan of Spennithorne: My Lords, the noble Lord is perhaps bemused by the length of his experience. The wording laid down by the Government,
  "if the authority are satisfied",
  that the exclusion is necessary, gives the authority the full power of discretion. If the authority is not so satisfied, nothing further happens; but if is so satisfied and exercises its discretion in that favour, surely it is right that it should be required to make the direction.
  I hope that, even at this hour, the Minister will separate the two amendments, and indicate why this proposal is objectionable. I do not think that any point of policy turns on it. It is a question of clarifying the position rather than anything else. I hope that the Minister will accept that if we were trying to introduce some change of policy or balance, we should say so; but that is not the case.
  Lord McIntosh of Haringey: My Lords, I already risk abusing the conventions of the House at Report stage. I do not accept that. I believe that discretion is paramount. The effect of the amendments, individually and collectively would be, by stealth, to extend the 28-day period.
  Earl Peel: My Lords, I do not like being accused of trying to extend the closures by stealth. The amendment is perfectly clear. There is a contradiction in terms. In view of the Minister's wholly unsatisfactory answer, I should like to test the opinion of the House.
  11.32 p.m.
  On Question, Whether the said amendment (No. 121) shall be agreed to?
  Their Lordships divided: Contents, 33; Not-Contents, 77.

  Division No. 3

  CONTENTS

  Allenby of Megiddo, V.

  Mackay of Ardbrecknish, L

  Attlee, E.

  Monson, L.

  Bledisloe, V.

  Montrose, D.

  Brittan of Spennithorne, L.

  Murton of Lindisfarne, L.

  Brookeborough, V.

  Northbourne, L.

  Byford, B.

  Northbrook, L.

  Northesk, E.

  Colwyn, L.

  Norton of Louth, L.

  Craig of Radley, L.

  Palmer, L.

  Craigavon, V.

  Peel, E. [Teller]

  Crathorne, L.

  Rotherwick, L.

  Dean of Harptree, L.

  Selborne, E.

  Dundee, E.

  Selsdon, L.

  Glentoran, L.

  Skelmersdale, L.

  Henley, L. [Teller]

  Skidelsky, L.

  Luke, L.

  Walpole, L.

  Lyell, L.

  Willoughby de Broke, L.

  NOT-CONTENTS

  Acton, L.

  Hoyle, L.

  Ahmed, L.

  Hughes of Woodside, L.

  Amos, B.

  Hunt of Chesterton, L.

  Andrews, B.

  Hunt of Kings Heath, L.

  Bach, L.

  Irvine of Lairg, L (Lord Chancellor)

  Bassam of Brighton, L.

  Janner of Braunstone, L.

  Berkeley, L.

  Lea of Crondall, L.

  Bernstein of Craigweil, L.

  Lipsey, L.

  Billingham, B.

  Macdonald of Tradeston, L.

  Borrie, L.

  McIntosh of Haringey, L. [Teller]

  Brett, L.

  McIntosh of Hudnall, B.

  Brooke of Alverthorpe, L.

  MacKenzie of Culkein, L.

  Brookman, L.

  Mackenzie of Framwellgate, L.

  Burlison, L.

  Mallalieu, B.

  Carter, L.[Teller]

  Mitchell, L.

  Chandos, V.

  Nicol, B.

  Clarke of Hampstead, L.

  Parekh, L.

  Cocks of Hartcliffe, L.

  Patel, L.

  Cohen of Pimlico, B.

  Plant of Highfield, L.

  Crawley, B.

  Davies of Coity, L.

  Puttnam, L.

  Donoughue, L.

  Ramsay of Cartvale, B.

  Dubs, L.

  Rea, L.

  Elder, L.

  Rendell of Babergh, B.

  Evans of Parkside, L.

  Sainsbury of Turville, L.

  Farrington of Ribbleton, B.

  Sawyer, L.

  Faulkner of Worcester, L.

  Sheppard of Liverpool, L.

  Gale, B.

  Smith of Leigh, L.

  Gibson of Market Rasen, B.

  Stone of Blackheath, L.

  Goldsmith, L.

  Thornton, B.

  Gordon of Strathblane, L.

  Tomlinson, L.

  Goudie, B.

  Turnberg, L.

  Gould of Potternewton, B.

  Warner, L.

  Grenfell, L.

  Warwick of Undercliffe, B.

  Hardy of Wath, L.

  Whitaker, B.

  Harris of Haringey, L.

  Whitty, L.

  Harrison, L.

  Wilkins, B.

  Hayman, B.

  Williams of Mostyn, L.

  Howells of St. Davids, B.

  Young of Old Scone, B.

  Resolved in the negative, and amendment disagreed to accordingly.
  11.42 p.m.
  [Amendments Nos. 122 to 129 not moved.]
  Clause 23 [Avoidance of risk of fire or of danger to the public]:
  Earl Peel Earl Peel moved Amendment No. 130:
  Page 14, line 4, leave out ("exceptional conditions of weather") and insert ("combination of the conditions of the weather, the ground or the vegetation on the land").
  The noble Earl said: My Lords, this amendment includes more specific reference to conditions of the ground and vegetation as well as to the weather. I believe that the Government must allow for closure where the weather is fairly normal but where the fire risk is high. Many of the areas involved will comprise SSSIs, SPAs and SACs and moorland of international importance. Are the Government saying that precautionary closures on these areas should not occur where a combination of factors means that the fire risk is high?
  Fire effects can be catastrophic, as many of us have seen over the years. I recall the fire on Rosedale Moor in 1976. That moor has still not recovered. Fire is a debilitating factor and has considerable impacts on nature conservation. Exceptional weather conditions suggest prolonged drought. "Exceptional conditions of weather" is the phrase used in the Bill as at present drafted. That is simply not enough. We have to take into account these other factors. I hope that the Government will look carefully at the issue. I do not look for extensions on closure orders. I simply seek to address the important issue of fire which I do not believe is properly addressed in the wording of the Bill as drafted. I beg to move.
  11.45 p.m.
  Baroness Young of Old Scone: My Lords, the noble Earl has a point. Where weather conditions may not be right for closure through fire risk other issues might come into play. Heathland can be at risk because the older and woodier heather is exceptionally combustible; or peat may have dried out over a long period of time. There are circumstances where a broader index is taken into account. The Meteorological Office Rainfall and Evaporation Calculation System (MOREX)—it gives objective and quantitative risk status taking into account a number of issues—is used at present with regard to closures for fire risks in the Peak and North York Moors National Parks.
  Before Third Reading, the Minister might consider the need for some expansion of the explanation relating to closures for fire risk.
  Lord Greaves: My Lords, I shall not repeat what I said in Committee. However, I do not understand why the Government are not prepared to look at some alternative wording. My preference would be to refer in general terms to conditions giving rise to a fire risk, ignoring reference to weather and so on. I ask the
  1492
  Government to consider the issue again. It is common sense. There is no deep ideological divide. The provision in the Bill is not right at present.
  The Duke of Montrose: My Lords, I apologise to your Lordships for not being in my place earlier to move my amendment. My organisation was such that the two people whom I asked to move it in my absence were both unable to do so.
  I support my noble friend's amendment. We have a moor which suffers from lack of proper maintenance. In some ways it reflects what the noble Baroness, Lady Young, said. The moor has become heavily infected with heather beetle. Instead of large woody heather, there is an enormous amount of dry tinder-like heather with no life in it. If huge areas like that developed, it would be a greater fire risk at times when there was no danger from extreme weather.
  Lord McIntosh of Haringey: My Lords, I do not think that we have any disagreement about the need to avoid fires and to deal with fire risk, just as we have no disagreement about the need to deal with exceptional weather conditions. The amendment would allow any combination of conditions of the weather, the condition of the ground or the vegetation on the land to be taken into account. We are in danger of descending into theology here if we seek to cover every possible eventuality.
  We believe that the provision in Clause 23 will cover all those cases where there is a legitimate need for restrictions or exclusion of access. It will be necessary to look at the weather in conjunction with the condition of the land and the vegetation: the noble Earl, Lord Peel, is right. But the weather conditions are the key to the exercise of the power. There will be situations where the risk of fire becomes most serious some considerable time after the exceptional weather, such as a prolonged drought, but the risk will still be due to that earlier exceptional weather and will still fall within Clause 23.
  As we said in Committee, there may be other circumstances in which there is a possible fire risk that has not arisen because of the exceptional weather conditions. For example, some types of vegetative cover may be flammable even in an ordinary summer. Those conditions are not exceptional and, by definition, they are not caused by usual weather conditions. They are part of the normal fabric of the open countryside and I am not satisfied that they give enough reason to restrict access to the land.
  The noble Baroness, Lady Young, referred to the Peak District National Park and North Yorkshire. The Peak District park has powers to exclude access at times of high fire risk under the same circumstances as provided for in Clause 23(1)(a). We are not aware of any representations that the powers have been inadequate. The Countryside Agency is working with the Meteorological Office to develop an early warning system. That may be what my noble friend referred to, although I did not catch the acronym. It will take account of weather and ground conditions and enable the relevant authority to assess whether a direction for

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  a closure should he made. The system would be similar to that which currently operates successfully in the Peak District.
  As we explained in Committee, if we allowed restrictions of public access in the generalised circumstances described in the amendment, many parts of the countryside could be closed to the public during most of the summer months when most people are likely to visit it. I am prepared to consider whether there is any mileage in pursuing the suggestion made by the noble Lord, Lord Greaves, of making a particular reference to fire risk as a subordinate consideration, but putting the three on an equal footing, as the amendment would, is not justified.
  Earl Peel: My Lords, I am somewhat confused because I think that the Minister gave an assurance that ground conditions and the vegetation on the land would be taken into consideration by the local authority when assessing whether it was appropriate to close an area because of fire risk. If he can assure us that authorities will take that into account, I do not understand why he does not accept the amendment. However, that is as may be.
  I have no intention of dividing the House on the issue. I am encouraged by the remarks of the noble Lord, Lord Greaves, and by the fact that the Minister has said that he is prepared to look at the issue again in the light of what the noble Lord has said. Given those circumstances, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 24 [Nature conservation and heritage preservation]:
  [Amendment No. 131 not moved.]
  Baroness Byford Baroness Byford moved Amendment No. 132:
  Clause 24, page 15, line 6, at end insert—
  ("( ) the purpose of preventing erosion of any track across the land which is used by persons exercising the right granted under section 2(1), or for repairing any damage caused by erosion to any such track;").
  The noble Baroness said: My Lords, in Committee the noble Earl, Lord Selborne, who is no longer in his place, raised his concerns that unlimited access may cause damage to sensitive areas. The Minister said that such damage would come under Clause 22, which is the land management clause. However, on reflection I am still uneasy as to whether that clause is adequately worded to cope with such circumstances.
  Erosion needs to be tackled swiftly if major and costly repairs are to be avoided. I beg to move.
  Baroness Farrington of Ribbleton: My Lords, government Amendment No. 134 is consequential on the formal change of name of English Nature in Clause 68. As we said in Committee, we have tabled an amendment to change the reference to the "Nature Conservancy Council for England" in Clause 24(6)(a)(i) to "English Nature", which is the name by
  1494
  which that body is generally known. That is consistent with the changes that have already been made to other parts of the Bill.
  Amendment No. 132 would introduce a new criterion for the making of directions under Clause 24 for the purposes of preventing erosion of any track or for repairing damage caused by erosion to any such track. Perhaps I may offer some reassurance. Stopping or preventing further erosion may well be the purpose of a direction under Clause 24. In addition, if problems of erosion arise in particular areas, it, will be open to those affected to seek restrictions on the right of access by means of directions under Clause 22 in order to secure the effective management of the land.
  Those affected may also wish to seek agreement with access authorities under Chapter III of the Bill for the construction of a new means of access which, in conjunction with strategically placed notices or information points, could be used to guide walkers away from sites which a landowner believes are susceptible to erosion. Therefore, in practice Amendment No. 132 is unnecessary and I hope that the noble Baroness will not press her amendment.
  Baroness Byford: My Lords, I am grateful to the Minister for her response. I am reassured by her words and, at this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 133 not moved.]
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 134:
  Page 15, line 23, leave out ("the Nature Conservancy Council for England") and insert ("English Nature").
  On Question, amendment agreed to.
  Clause 25 [Directions by relevant authority: general]:
  Lord Whitty Lord Whitty moved Amendment No. 135:
  Page 15, line 35, at beginning insert—
  ("( ) Before giving a direction under section 22, 23 or 24 in relation to land in an area for which there is a local access forum so as to exclude or restrict access to the land—

  (a) indefinitely, or

  (b) during a period which exceeds, or may exceed, six months,

  the relevant authority shall consult the local access forum.").
  On Question, amendment agreed to.
  Clause 30 [Regulations relating to exclusion or restriction of access]:
  Lord Whitty Lord Whitty moved Amendment No. 136:
  Page 18, line 26, at end insert—
  ("(aa) as to the steps to be taken under section (Dogs on certain land)(1) and (2),").
  On Question, amendment agreed to.
  [Amendment No. 137 had been withdrawn from the Marshalled List.]
  Clause 31 [Guidance by countryside bodies to National Park authorities]:
  [Amendment No. 138 not moved.]
  Clause 32 [Interpretation of Chapter III]:
  Baroness Hamwee Baroness Hamwee moved Amendment No. 138A:
  Page 20, line 5, after ("land)") insert ("or on the land").
  The noble Baroness said: My Lords, in moving Amendment No. 138A, I wish to speak also to Amendment No. 138B. These amendments relate to Chapter III and deal with means of access. They seek assurances that the definition of "means of access", in particular in relation to fences or hedges which bound land and items on the land, covers not only fences and hedges around the edge of a parcel of land but includes, for example, walls and fences which cross a particular parcel of land. The amendment simply seeks that assurance. I beg to move.
  Lord Whitty: My Lords, I am happy to give the noble Baroness that assurance. Clause 32 as it stands covers means of access in relation to appropriate places within access land. Means of access includes an opening, gate or stile bounding the land or part of the land. The reference to "part of the land" means access from one part of access land to another and, therefore, in the noble Baroness's terms, within the access land. Therefore, that is already covered.
  Baroness Hamwee: My Lords, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 138B not moved.]
  Clause 35 [Provision of access by access authority in absence of agreement]:
  Lord Whitty Lord Whitty moved Amendment No. 139:
  Page 21, line 26, after ("land") insert (", or to other access land,").
  The noble Lord said: My Lords, in moving Amendment No. 139, I wish to speak also to Amendment No. 140. These are minor amendments. Amendment No. 139 makes it clear that access authorities must serve a notice of intention to carry out works relating to a means of access in respect of any access land where the means of access is required to facilitate access to other access land. The Bill currently provides only that such a notice may be served to secure means of access to the access land in question.
  Of course, such a notice may be issued only provided that the access authorities have sought, and have been unable to reach, an agreement with the owner or occupier regarding the means of access.
  Amendment No. 140 fulfils a commitment made in Committee to provide that owners or occupiers may appeal against such notices on grounds that a different means of access should be provided. That proposal received support in Committee and, therefore, I hope that the amendments will be welcomed. I beg to move.
  Baroness Hamwee: My Lords, our Amendment No. 139A is in the same group. This clause deals with the provision of access by the access authority where there is no agreement. We were concerned to ensure that the position between the introduction of the Bill and its coming into force is covered. In other words,
  1496
  one could look on this as a sort of anti-avoidance provision. I believe that the Bill was introduced into another place on 3rd March of this year, which is why that date is used in the amendment.
  We are concerned, for example, that a landowner who in the past has had some simple means of access such as a makeshift bridge made up of a couple of planks, because of concern about danger to the public, rather than providing a more substantial bridge would simply remove it. While we welcome the clause and the amendments, we wish to cover the actions which may be taken by a worried, not necessarily malevolent, landowner in the position from now until this Bill is enforced.
  Lord Whitty: My Lords, this amendment is unnecessary. Access authorities may take action where it appears to them that a means of access needs opening up. That would include a situation where a previous means of access has been removed, destroyed or has become dangerous. Therefore, that is covered by a combination of the Bill as it stands and the amendments which we have just moved.
  In addition, as my amendments indicate, there must be an attempt to reach agreement with the landowners, and that is not fully reflected in the amendment. In any event, it is unnecessary.
  On Question, amendment agreed to.
  [Amendment No. 139A not moved.]
  Clause 36 [Appeals relating to notices]:
  Midnight
  Lord Whitty Lord Whitty moved Amendment No. 140:
  Clause 36, page 22, line 19, after ("elsewhere") insert (", or that a different means of access should be provided").
  On Question, amendment agreed to.
  Clause 38 [Powers of entry for purposes of Part I]:
  Lord Glentoran Lord Glentoran moved Amendment No. 141:
  Clause 38, page 23, line 36, at end insert—
  ("( ) for the purposes of removing litter, or
  ( ) for the purposes of removing waste dumped therein").
  The noble Lord said: My Lords, this amendment concerns the removal of litter. One of the problems with the Bill, particularly in Part I, is that it is very difficult to insert anywhere clauses which actually lay duties on anyone other than the owner or occupier. Another is perhaps that the Bill still does not totally recognise a number of the well-known problems inherent in running the countryside.
  We have had debates during the passage of the Bill about litter and the dumping of waste. The problem is well understood and accepted on all sides of the House. But we do not seem to have a satisfactory means of managing it. The Royal Institution of Chartered Surveyors said in its policy on the implications of enhanced access:
  "There have been litter problems in areas where people walk, such as the long distance routes and paths. Even in remote areas such as the Lyke-wake Walk, litter is dropped along the route. It is often impossible to catch the perpetrator, so the provision in the

  1497
  Bill to give them trespasser status for a day will not be a practical solution. The new arrangements must contain provisions for the collection of litter".
  That is the intention behind the amendment. I hope that the Government will see a way of accepting this and helping to solve that inevitable problem. I beg to move.
  Lord McIntosh of Haringey: My Lords, perhaps I may take the opportunity to respond to Amendment No. 141 and to speak also to government Amendments Nos. 142 and 143. I shall deal with Amendment No. 141 first, as we all share the concern about litter. The noble Baroness, Lady Farrington, made clear in Committee that we take the matter seriously. We are looking at measures both to help prevent it occurring in the first place, which is clearly the ideal, or, failing that, to deal effectively with it where it does occur.
  Leaving litter on access land will be a criminal offence under the Environmental Protection Act 1990 liable to a fine of up to £2,500 in the magistrates' court.
  We envisage that mainly it will require only a light touch. Open land is not a country park. There are large tracts of moor and other open country where only the more adventurous will go. But there will be some areas which have been off limits in the past which will become popular. It is particularly in those areas that litter could become a problem. The Countryside Agency is discussing with us how the right of access can best be implemented and managed. We are considering the need for a specific grant regime to help fund effective management of access on the ground or example through signs, information and other facilities. That kind of grant may also be the appropriate mechanism for funding action to prevent or clear litter which has resulted directly from the new right of access. The grant fund would be in addition to the resources which local authorities will have to meet their responsibilities under the Bill; for example, the provision of wardens or new and improved means of access.
  That is how we plan to tackle litter problems which may arise, but we are still open to other suggestions and were interested to hear the comments of the noble Lord, Lord Glentoran.
  I turn to Amendment No. 141. If there is a problem with litter and the local highway authority wishes to take action, it can enter the land concerned with the agreement of the occupier. I do not see why an occupier should object to someone else clearing litter or rubbish on his land. Alternatively, a warden can be appointed and one of the duties could be the removal of litter. Wardens will have the power of entry under the Bill. Therefore, I do not think that the amendment is necessary and I hope that it will not be pressed.
  I turn to government Amendments Nos. 142 and 143, which make consistent what public bodies may do under Part I and Part III of the Bill in carrying out their legal responsibilities and what provision should be made for compensation if they cause damage.
  Amendment No. 143 reflects our agreement to consider a similar amendment tabled by the noble Lord, Lord Glentoran, in Committee. We accept the
  1498
  principle that if damage is caused by a public body in carrying out its legal responsibilities, a person suffering such damage should be entitled to compensation. That is why we accepted a similar amendment tabled in another place in relation to Part III of the Bill.
  It is possible that a person authorised by a public body might cause damage, for example, in constructing or repairing a means of access or in erecting a notice. Amendment No. 142 clarifies what authorised persons may do in exercising their powers under this part of the Bill. The provision is similar to Clause 74(6). I commend the amendments to the House.
  Lord Northbrook Lord Northbrook moved, as an amendment to Amendment No. 143, Amendment No. 144:
  Line 14, leave out paragraphs (a) and (b) and insert—
  ("by the President of the Royal Institution of Chartered Surveyors").
  The noble Lord said: My Lords, I rise on behalf of my noble friend Lord Caithness to move Amendment No. 144 as an amendment to Amendment No. 143. Amendment No. 144 states that any dispute as to a person's entitlement to compensation under this clause or as to its amount should be referred to an arbiter to be appointed in default by the president of the Royal Institution of Chartered Surveyors.
  The intention of the amendment is to create an independent arbiter outside the orbit of government. Originally it was thought that a tribunal might be the best process, but the president of the Royal Institution of Chartered Surveyors has been thought to be appropriate.
  As a result, a conflict of interest where a Minister or assembly is arbitrating on the validity of an individual clause in a Government Act is avoided. I beg to move.
  Lord McIntosh of Haringey: My Lords, we are debating Amendment No. 141. The noble Lord, Lord Northbrook, spoke to Amendment No. 144 but I need the leave of the House to respond to that amendment, which I now seek.
  Of course the Royal Institution of Chartered Surveyors is representative of the surveying profession and has a wealth of experience in dealing with claims in relation to property generally. We do not expect many, if any, of the claims for compensation to arise as a result of the use of the powers of entry under Part I. But we accept that the Secretary of State or the National Assembly for Wales may decide that chartered surveyors are the most appropriate people to act as arbitrators. We would not wish to fetter their discretion to decide on whom to appoint.
  Having heard and paid serious attention to the point made by the noble Lord, Lord Northbrook, about the potential for conflict of interest, which we accept, nevertheless we believe that the Secretary of State or the National Assembly for Wales should retain responsibility for appointing arbitrators.
  Lord Glentoran: My Lords, I speak once again to Amendment No. 141. The difficulty with littermongers is that one can never catch them.

  1499
  Having said that, I welcome the Minister's positive and helpful comments. It is good to know that the Government understand and accept the problem and indeed that they are not only thinking about it, but are clearly thinking of putting some money where it is necessary and I am grateful for that.
  I omitted to thank the Minister when I moved Amendment No. 141 for his Amendment No. 143 in response to my original Amendment No. 299. I am extremely grateful and delighted that the Government made that concession and welcome both Amendments Nos. 142 and 143. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 142:
  Clause 38, page 24, line 12, at end insert—
  ("(4A) A person acting in the exercise of a power conferred by this section may—

  (a) use a vehicle to enter the land;

  (b) take a constable with him if he reasonably believes he is likely to be obstructed:

  (c) take with him equipment and materials needed for the purpose for which he is exercising the power of entry;

  (d) take samples of the land and of anything on it.

  (4B) If in the exercise of a power conferred by this section a person enters land which is unoccupied or from which the occupier is temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.").
  On Question, amendment agreed to.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 143:
  After Clause 38, insert the following new clause—

  COMPENSATION RELATING TO POWERS UNDER S. 38
  (" .—(1) It is the duty of a body by which an authorisation may be given under section 38 to compensate any person who has sustained damage as a result of—

  (a) the exercise of a power conferred by that section by a person authorised by that body to do so, or

  (b) the failure of a person so authorised to perform the duty imposed on him by subsection (4B) of that section,

  except where the damage is attributable to the fault of the person who sustained it.
  (2) Any dispute as to a person's entitlement to compensation under this section or as to its amount shall be referred to an arbitrator to be appointed, in default of agreement—

  (a) as respects entry on land in England, by the Secretary of State, and

  (b) as respects entry on land in Wales, by the National Assembly for Wales.").

  The noble Lord said: My Lords, I beg to move.
  Lord Northbrook: My Lords, I thank the Minister for his earlier reply. I should like to read carefully what he said. In the mean time I beg leave to withdraw Amendment No. 144.
  Amendment No. 144, as an amendment to Amendment No. 143, by leave, withdrawn.
  On Question, Amendment No.143 agreed to.
  12.15 a.m.
  Lord Brittan of Spennithorne Lord Brittan of Spennithorne moved Amendment No. 145:
  After Clause 38, insert the following new clause—

  COMPENSATION FOR DIMINUTION IN VALUE OF LAND
  (" .—(1) Where an owner or a person with an interest in land proves that he has suffered a diminution in the value of his land or interest therein due to the right conferred by section 2(1), he shall be entitled to claim compensation in the same manner and on the same basis as provided under sections 70 to 72 of the National Parks and Access to the Countryside Act 1949 ("the 1949 Act") in relation to land over which an access order has been made under Part V of that Act.
  (2) Regulations may be made as under section 70 of the 1949 Act.").
  The noble Lord said: My Lords, I rise to move Amendment No. 145. My noble friend Lord Renton asked me to say that he would have liked to be here to speak in support of this amendment but is indisposed because of a heavy cold. I understand the noble and learned Lord, Lord Brightman, to be similarly indisposed.
  Amendment No. 145 provides compensation if there has been a diminution in the value of the land as a result of the right of access provisions of this legislation. I start on the basis that it is reasonable, as a matter of common justice, to provide that somebody whose land becomes less valuable exclusively as the result of rights conferred specifically by an Act of Parliament, should receive compensation. It is not an act of nature; it is an act of government and the owner of the land is, ex hypothesi, the loser.
  Quite apart from it being reasonable as a matter of common justice that somebody whose land suffers a loss of value as a result of the deliberate decisions of Parliament should receive compensation, it is also something which, if not provided for, is likely to amount to a breach of Article 1 of the human rights convention which is now part of the law of this country. The House will be relieved to hear that I do not propose to repeat everything I said in Committee in relation to the application of the human rights convention to this Bill.
  However, I will say that although I have not been able to be present during all your Lordships' debates on the Bill, I am not aware of any substantial answer being given to the points I made in the debate relating to the application of the article in the Convention on Human Rights. Perhaps I may remind the House that I was not simply making it up as I went along, but citing relevant British court decisions as well as Strasbourg ones. So I remain dissatisfied with the state of the Bill, and the amendment is designed, at least in part, to remedy the problems caused by the lack of compensation on the face of the Bill and its incompatibility with the provisions of the Convention on Human Rights.
  When one is talking about the right of access, one is really talking about a generalised right of way. The only difference is that the right of way is not on a linear path but over a wide area of land. The purposes for which it is granted are not to pass and repass, which is

  1501
  practically the purpose of a right of way, but for recreational purposes. But in all other respects it is a generalised right of way and I do not believe that it would ever be doubted that if one grants a right of way on someone's land one is thereby diminishing the value of the property. The only question is to what extent, if it is measurable, is there such a diminution. The same would apply if there had been a right of access, but a greater loss would be suffered because the right of access to the land is greater than a mere right of way.
  The question for the House is: has there been an infringement of property rights and, if so, should compensation be granted for that? The House will recall that on 18th April this year, Mr Meacher in another place conceded that the Bill infringes property rights. I do not believe that that can be seriously disputed. But of course it is the case that as regards the convention the right is not absolute. It has been interpreted as requiring a fair balance to be drawn between the demands of the general community and the requirements of the individual's fundamental rights, including the right to enjoy his property without any diminution of its value.
  Therefore, if that fair balance has to be drawn in order to establish whether there has been a breach of the convention, the question of whether compensation is provided is supremely relevant. Let me once again quote the recent case of Lithgow in which the judge stated that compensation terms were material to the assessment of whether a fair balance had been struck between the various interests at stake and, notably, whether a disproportionate burden had been imposed on the person deprived of his possessions.
  Therefore, compensation terms are not merely relevant, they are material, and there are no such provisions here. Therefore, it seems to me clear that apart from questions of justice in the abstract sense and fairness in the normal sense, the Minister must be highly at risk with regard to the provisions of the Convention on Human Rights if he proceeds without allowing for compensation where there has been a loss of value of the land.
  That argument is all the stronger for the fact that there is ample precedent for providing for compensation where there has been a loss of property rights as a result of statutory enactment. Indeed, the wording of my proposed new clause derives wholly from that precedent; namely, that of the National Parks Act. To that might be added the Highways Act 1980, which deals in similar fashion with the effect of the creation of rights of way.
  What we are proposing in the new clause is to follow precisely the procedure of the National Parks Act with regard to compensation. As to that, the Minister will recall that ample protection is given against frivolous claims in the sense that people assert that their land has lost value when there is no evidence of it. One of the ways in which that is guarded against is that a claim can be made only after five years when there will or will not be evidence of a loss of value.
  In scanning the various observations that have been made during the passage of this legislation I have sought an answer to the question of whether, in
  1502
  fairness, compensation should be granted and how the situation is to be handled in terms of the European Convention on Human Rights. At times it is said that in effect there cannot be any possible loss of value. The question that is frequently asked is: if that is so, what do the Government have to fear from a provision which states that if after five years it can be shown, contrary to their belief, that there has been a loss of value compensation is payable?
  It is not credible to believe that if there is a substantial increase in access, under no circumstances will there be any loss of value. Noble Lords will recall that in earlier debates I said that the whole purpose of the Bill was not to bring about an incremental addition to the number of people having access to the land but that, for the benefit of the public, there should be substantial extra access to the land. There would be no point in introducing legislation of this complexity if it was not meant to change the situation on the ground and give large numbers of people the right to enter upon other people's property which they do not have now. In those circumstances, the evidence already cited of an average cost of £4 per acre in the Peak District is relevant as an indication of probable loss in value. That loss must be proved and cannot simply be asserted. There is no basis for saying it is inconceivable that there will be any loss at all.
  Another argument that I discover in scanning the pages of the reports is that compensation may be given. It is clear from the cases, in particular the one I cited when noble Lords last debated this matter, that it is no answer to an entitlement to compensation on grounds of justice to say that some body may in its discretion give compensation if it wants to do so. That is fundamentally contrary to all principles of law. If one is entitled to compensation, it is a matter of right and is not dependent on the discretion of some body. If it is clearly established that there has been a diminution in the value of land, it is inconceivable that anybody who considers the issue will say that it does not matter because some body may or may not at its discretion grant compensation.
  A further argument which appears to be deployed in answer to the call for compensation is that the grant of the right of access affects everybody and, therefore, there is no entitlement to compensation for a breach of the convention. There is a fundamental flaw in the logic of that argument. It is certainly the case that if different groups of people in the same circumstances are treated differently that is discrimination which may be the foundation for a claim that there has been a breach of the convention. But it is a great mistake to say that it is only if there is discrimination in favour of or against one particular class of people among those affected that a breach occurs. There does not need to be discrimination for a breach to arise. It is clear that if there is unfair deprivation of the value of one's land, that is objectionable, whether it applies to everybody or to only a class of people.
  The final argument concerns who should pay compensation because of the loss of the value of the land. Again, as in the case of the national parks provisions, I have followed the analogy there and said

  1503
  that the exact modalities whereby this right is translated into a reality should be left to regulations. That would be a reasonable approach.
  Perhaps I may say to the Minister that this is not meant to be a subversive amendment. It is not meant to be something that makes it impossible to grant the right of access which the Government feel they have a mandate to grant to people who have been waiting for it for a long time. Rather I would say that those who feel they have waited so long to get this right of access will not thank the Government if that right is held up for a long period in litigation in this country and elsewhere because the present provisions are found to be in breach of the human rights provisions—provisions that the Government have, to their credit I happen to believe, enacted. I would say to the Minister that to the extent that he thinks that compensation is something which is irrelevant because it will never arise, the noble Lord would be wise to listen to the arguments that have been put forward in many quarters that a provision of this kind would not subvert the intentions of the Government but would render them immune from challenge in an embarrassing and unnecessary way.
  Viscount Bledisloe: My Lords, the noble Lord, Lord Brittan, has drawn attention to the fact that the noble Lord, Lord Renton, and the noble and learned Lord, Lord Brightman, have added their names to the amendment. In view of the hour and the fact that neither of those noble Lords is still quite in the first flush of youth, their absence is perhaps not surprising, quite apart from any ill-health. But the House and, with respect, the Government cannot ignore the fact that two noble Lords of that experience, of that knowledge of the law, and so forth, have thought it appropriate to add their names to the amendment whereas they have not taken part generally in the Bill. Surely, that must give the Government serious cause for thought that the amendment is necessary as a matter to satisfy the requirements of the law.
  Perhaps I may add two other points. First, surely the need for compensation is extenuated by the fact that the Government decline to give any form of indemnification to persons who incur loss and expense. They recognise that people will incur loss and expense. But if they do not get that money back, that must mean that there is a diminution in the value of the land.
  As to discrimination, it is not an answer to say that this affects all landowners equally and, therefore, there is no need for compensation. If the Government said that "everyone who owns a house shall give it up to squatters", I cannot believe that they could say also, "and we do not have to compensate you because that applies to all house owners". But of course this is discriminatory even as between landowners. It applies only to those landowners who happen to own land of this kind. Other landowners who do not own land of this kind do not suffer the same diminution in the value of the land. Surely, as the noble Lord, Lord Brittan, said, the Government do not want this elaborate
  1504
  legislation to run into the sands, in the light of the argument advanced by the noble Lord, of a very worrying human rights challenge. It would be better to accept that where after five years it is apparent that someone has genuinely suffered diminution in the value of the land he should be compensated for it. Of course, as the noble Lord says, some people may not suffer. They may benefit because they can open attractions.
  12.30 a.m.
  Baroness Hamwee: My Lords, I accept that the precondition set out in the amendment is the proof of loss of value. Indeed, the noble Lord, Lord Brittan, described that as being measurable; he said, "if it is measurable".
  I am not sure whether the noble Lord is using the 1949 Act as a model or as a precedent. I do not entirely go along with the noble Viscount, Lord Bledisloe, with regard to whether or not that was discriminatory and this legislation is not. I believe that there is a difference. However, as I understand the position, the convention and now our own legislation are not violated if the state imposes control which is in the public interest or enforces law in the public interest as the state judges that to be. It is required that a fair balance is applied. The state is the appropriate authority to determine the compensation, if any compensation, as long as it has regard to that balance. The House has been assured by the Minister that it has had regard to that balance; no doubt, that is on the basis of advice from the Law Officers.
  I hesitate to tangle with the eminent lawyers who have spoken to and put their names to the amendment, but it seems to us that it is for the state to take a view as to the process to be applied and then it is for the courts to assess whether the convention and the Human Rights Act have been complied with. I am a little concerned that we in this House may be confusing the roles of the legislature and the courts in attempting to assess the outcome of this process.
  Baroness Byford: My Lords, I rise to support my noble friend's very well put case for Amendment No. 145. We touched on human rights during earlier proceedings on the Bill and the Government said confidently that human rights provisions will not apply in the way that my noble friend thinks they will. With that in mind, I should like to ask some questions of the Minister. First, have the Government sought up-to-date legal advice on the whole position of human rights, bearing in mind the way in which my noble friend has explained the position? If so, has that altered the view that they held before such advice was sought?
  Secondly, my noble friend pointed out that compensation "may" be given. That is not good enough. Why should that be the case? The landowner or property owner could find himself in a position which he would not otherwise be in, where the land that he owns has diminished in value as a result of these access provisions in which he has had no say. It is the Government's wish that these access provisions should

  1505
  come into existence and we do not object to that. But surely it is right that where legislation affects the value of the land compensation should be given. We are talking here both about the right of access and people's rights as property holders and land managers.
  My noble friend expressed the hope that the legislation will result in more people wanting to make use of the countryside, although it has also been suggested that the same people will simply make more visits to more sites. I hope that the legislation will encourage people to enjoy the countryside. But with that will come additional difficulties and perhaps a loss of value of the land to the landowner.
  My noble friend expressed his case very eloquently. I shall not repeat the points that he made. But I ask the Minister to state what views the Government held on this matter at the time of Second Reading and whether their views have changed. If their views have not changed, I ask that between now and Third Reading they seek up-to-date advice on the whole question of human rights legislation and how it affects the Bill.
  Lord Whitty: My Lords, I have been asked to give a straight answer to the question put to me by the noble Baroness. I have not changed my mind. I do not think that compensation is appropriate in this area. I am constantly amazed at the different areas in which some members of the legal profession seek to cite the Human Rights Act and thus the convention. I do not believe that it is relevant to the position here, but even if that was not the case, I shall demonstrate shortly that it would not be appropriate and that the advice—which we continue to keep under review—has not changed; namely, that the provisions of the Human Rights Act would not appropriately lead to compensation as sought by the noble Lord.
  However, before I turn to the Human Rights Act and the European Convention on Human Rights, I shall deal with the current provisions in English law which the noble Lord has cited as precedents. In particular, whether as a precedent or as a model, the noble Lord has referred to the National Parks and Access to the Countryside Act 1949. He dismissed my main point as regards that Act. However, the reason why—unusually—compensation was provided in the 1949 Act was that it related to land of a particular kind. Discrimination was made between one landowner and another as regards what would be included within a national park. That is not the case here. The right of access will apply to all mountain, moor, heath, down and common land. No discrimination will be made and therefore no prima facie right to compensation will exist in relation to the value of such land.
  The more general position in English law has been that no compensation has been paid. The Law of Property Act 1925, which gave the right of access on foot and on horseback to large areas of common land, did not make any general provision for compensation. If that is too ancient a precedent for noble Lords, then I shall cite the Dartmoor Commons Act 1985, an Act
  1506
  passed when the noble Lord, Lord Brittan, was a leading member of the government. That Act also did not provide for compensation.
  I do not believe that the comparison with rights of way is valid. Noble Lords have suggested that, because compensation is payable on rights of way, it should be payable on rights of access. I believe that the noble Lord said that this is only a "generalised right of way". However, the balance here is quite different. Landowners with rights of way are subject to a large number of obligations. For instance, if they are ploughing up a field, they must restore a right of way and keep it clear of crops. As regards access land, there is no such obligation. At any time, owners can change the nature of the land by ploughing it up, planting it or undertaking any other operation on it. In many such cases, that of itself would mean that the right of access would cease. It would no longer be access land because it would not be open country.
  Another difference is that, for open countryside, we have allowed for a generous closure regime; even after the amendments that we are proposing to Part If of the Bill, the possibilities for landowners and managers to close rights of way will be extremely limited. No analogy exists in relation to rights of way.
  In relation to the ECHR and the Human Rights Act, now enshrined in English law, I think that it is important for me to put on the record certain points I made at earlier stages. The noble Lord, Lord Brittan, indicated that the right of property is not absolute in the convention. Indeed, I would argue that it is not even necessarily paramount. However, Article 1 of the First Protocol refers to the peaceful enjoyment of possessions and goes on to say that no one should be deprived of their possessions except in the public interest and subject to conditions provided for by law. It also states that:
  "The preceding provisions shall not … in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest".
  It is self-evident that we do not consider that the right of access is the taking of property. It does not, therefore, fall under the earlier provision. If we were nationalising or taking over land for some other purpose, then the matter would be brought under the first provision. Indeed, the noble Lord cited the Lithgow case, which I remember well as I was the author of the original Labour Party policy which called for the nationalisation of the shipbuilding industry. That case dealt with the deprivation of ownership by means of nationalisation. It therefore fell under the provision relating to the taking of land. This provision relates to the control of the use of property, not to the taking of the use of property.
  As the noble Lord is no doubt aware, it is fairly well established that where the taking of property is concerned—except in very exceptional circumstances—compensation is provided. But compensation is not necessarily required to achieve the balance between the public interest and the protection of private property that is required in the Bill in respect of control over the use of property. In this context we

  1507
  are talking about control over the use of property—namely, the requirement to provide access—and, provided that there is a fair balance in other respects, there is no requirement for compensation in that area.
  We have had regard to a number of leading cases, including, for example, Baner v. Sweden, in which it was established that, where there is a control of property, there is no presumption of compensation. There are a number of other such cases which refine and clarify the law in that respect. The noble Baroness would not expect me—even less would the noble Lord, Lord Brittan, expect me—to breach the normal convention that we do not disclose the advice from Law Officers. Nevertheless, even from general legal reading, it is clear that my position can be sustained in relation to control of property. We are on fairly substantial legal ground in saying that, where a fair balance is established by other means, compensation is not appropriate.
  Much of the debate has been about the nature of that balance. Some noble Lords consider that the balance is not fair. But perhaps even they would concede that it is somewhat fairer than when the Bill first came to the House because, by and large, we have made amendments which move in the direction of the landowner. Nevertheless, they still query whether we have reached a fair balance.
  In all of this we have been talking about balance. We believe that we have reached a fair balance as a result of a number of amendments, proposed originally by noble Lords and introduced, by and large, by the Government. Except in exceptional circumstances, that balance does not require an additional right of compensation.
  Because of the concerns expressed about the effects on landowners, we have accepted a significant number of changes and we have pledged that there will be adequate funding to manage access properly. We understand that there remain anxieties, but as many landowners will benefit as will be detrimentally affected, as they would see it, by the provisions of the Bill. It is not sensible that we should provide a general compensation clause in the way suggested by the noble Lord's amendment.
  It is important that there is an appropriate balance between the public interest of walkers and the population at large, and the interests of landowners. We believe that we have reached that balance—or are in the process of reaching it—and that the issue of compensation is not therefore relevant. English law precedent suggests that it is not the normal situation in any case, and I believe that I have shown that, under the European Convention on Human Rights, the balance of cases are on my side rather than on the side of the noble Lord. I hope that he will not pursue his amendment.
  Lord Brittan of Spennithorne: My Lords, I find the Minister's response deeply disappointing but, frankly, not surprising.
  1508
  Perhaps I may deal first with the question of the general balance. In any society that values the right of the individual, it is no answer to say that there is a broad balance between this group of citizens and another group of citizens where a particular individual is able to show loss. In this country we have always had the view that a person should be regarded as an individual, not only as a part of a group. If, as an individual—even if he is of that beleaguered class, the landowner—he has suffered loss, as a matter of justice, quite apart from all the provisions of English law and human rights law, we would believe, think, assert and say that that individual should be entitled to compensation, even if the group of people of which he is a member has been treated fairly or has been given concessions. The question only arises if an individual has suffered loss and can prove it. It is not right that in a civilised country that loss should be sustained and no provision made for compensation for that loss.
  As regards the law and the Convention on Human Rights, I am wholly unpersuaded by what the noble Lord said. He did not address at all the Chassagnou case on which I laid particular stress. The House might recall that I said that it was ironic because that was a case where hunters were allowed by statute to go on people's land against the owners' wishes. It was held that even though there was compensation a breach of the convention was made in giving the right to people to go on other people's land. There was no question of the taking of property, but merely allowing other people to go on other people's property. That was held to be sufficient to cause a breach of the convention. I am sure that the Minister has obtained advice in the usual way, but I doubt its validity in this particular case and regret that he has put us into the position where it may need to be put to the test.
  Finally, perhaps I may say a word about the position of the Liberal Democrats on this issue. Frankly, I was shocked to hear from that part of the House a speech in which it was said that it is for the state to decide what balance to make and for it to decide the process to be followed. Gladstone and John Stuart Mill would turn in their graves to hear that cavalier view expressed about the rights of the individual. It also shows a complete misconception of the way in which the convention works, and which I joined the Liberal Democrats in welcoming, contrary to the views of some members of my own party. Its whole purpose is to avoid a situation in which the court, uniquely as a result of that convention, has to decide whether the Government have got it right. It is not a question of saying that the Government do it and then the court looks at it. If the Government get the balance wrong, the consequence is that the whole legislation is regarded as being contrary to the convention. If they wish to be true to the convention which they have recently enacted, they have to put fresh legislation before the House. I find that approach disappointing and shocking from a party that regards itself at the forefront of the supporters of the incorporation of that convention into British law.

  1509
  The hour is late and we have not received satisfaction. I propose to withdraw the amendment at this stage in the hope that when we come to Third Reading wiser counsel may even then prevail and we can have another look at the whole question.
  Amendment, by leave, withdrawn.
  12.45 a.m.
  Baroness Byford Baroness Byford moved Amendment No. 146:
  After Clause 38, insert the following new clause—

  REVIEW OF EXERCISE OF POWERS AND DUTIES IN RELATION TO ACCESS LAND BY COUNTRYSIDE BODIES
  (" .——(1) Each countryside body shall, within five years after the commencement of this section, and subsequently at intervals of not more than ten years, prepare and publish a statement containing its assessment of—

  (a) the adequacy of its management, in exercising its duties and powers under Part I of this Act, of each of the matters specified in subsection (2), and

  (b) the action it proposes to take, if any, to improve its management of these matters.

  (2) The matters referred to in subsection (1) are—

  (a) the maping of access land under Chapter I.

  (b) discretionary and permitted closures and restrictions under Chapter II,

  (c) the making of directions under Chapter II,

  (d) the provision of information to the public in relation to Part I, and

  (e) any other matters that may be specified in regulations.

  (3) Before preparing a statement under this section each countryside body shall consult such persons as may be prescribed in regulations.").
  The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No. 147. As I believe we are all aware from the various debates on the establishment of this Bill to give access to everybody, there will be teething problems. These two amendments require a review of the exercise of the powers and duties in relation to the access land by the countryside bodies. Amendment No. 147 proposes a review of the exercise of the powers and duties of the access authorities within five years in both instances.
  I hope that the Government will be able to support these amendments. I believe that they will consider them to be very wise and sensible.
  Turning to Amendment No. 147, at earlier stages there were objections to what was then Amendment No. 301 relating to access land management strategies on the grounds that local authorities already had enough plans to prepare and that some of the matters to be covered in the plans lay outwith the remit of the access authorities (Official Report, 9/10/00; cols 11–18).
  The amendment responds to those criticisms by requiring the authorities to prepare statements, not just plans as such, setting out how they have exercised the special functions and how they plan to improve the provisions in relation to these functions. My parallel amendment requires the same from the countryside bodies. Indeed, these are enormously important amendments.
  In Committee, the discussions around the proposal were well supported by the noble Lord, Lord Williamson, who is unfortunately no longer in his place; and the noble Lord, Lord Jopling, indicated that we should return to the matter on Report, as indeed we have. My noble friend Lord Peel will also speak to these amendments.
  The Government may realise that they have failed to estimate the impact that the right of access may have on land management practices. There is nothing outrageous in these amendments. If the Government do not like the wording, I hope that at least they may feel able to support the thrust of the amendments, which require the countryside bodies to review the exercise and functioning of the provision they have made and to come back with statements on where they stand and where they see matters going in the future. I beg to move.
  Earl Peel: My Lords, I strongly support these two amendments. This legislation takes us into uncharted waters. There is no question that it will have a considerable implication for the way in which access land is managed.
  There are new opportunities for walkers, and with those come new responsibilities. We shall have to watch closely to see how those responsibilities are regarded by those with the new rights and how the access authority manages the balance—the word "balance" has recurred so often in discussions during the course of the Bill—between the two interests. That will be a crucial test as to how effective the legislation will be in practice.
  The ability of the access authorities to get the right messages to the public is essential. Let us not forget—and it is a major fault in the Bill—that there are no statutory requirements for people to go on to access land via access points. It is essential that the messages get through on restrictions, on by-laws and on the ability to implement the provisions in Schedule 2 and Chapter II. It will need to be asked whether all the various constraints, the messages and the whole raft of information that is essential in making the Bill effective is getting through and whether the public are responding effectively.
  We have discussed many times the question of dogs and the question of night-time access. All these issues bring new challenges to the countryside. It is essential that we keep close tabs on how the legislation is working in practice.
  There is another essential part to my noble friend's amendment; namely, the whole question of the financial provisions. Will they be sufficient to allow the access authorities to carry out their responsibilities? We shall have to wait and see. But without this amendment I do not believe that the structure is in place for us to look carefully and with due consideration—from everyone's point of view, not just that of the landowner but also of the walker—to see whether the Bill is working effectively.
  The Government maintain that local authorities already have enough plans to prepare and that, therefore, they do not want to burden them with any

  1511
  more. But, quite frankly, that is a pretty weak excuse. If there is a good reason for further plans—or, indeed, for a "statement", as specified in the amendment—then so be it. It is only right and proper that such considerations should be taken into account. I strongly support these amendments. They relate to an essential part of seeing how effective this Bill will be. As I have already said, its implications will be very significant.
  Baroness Farrington of Ribbleton: My Lords, we explained in Committee that we do not believe that it is desirable to place an additional duty on access authorities to publish an assessment of how they have used their powers under Part I. Amendment No. 146 would require the countryside bodies to publish a similar document outlining how they have carried out their various duties and powers under the Bill.
  The Countryside Agency is already required to produce an annual report explaining how it has fulfilled its statutory duties. The agency must do so every year rather than every 10 years, as this amendment would require. The publication of the annual report is a requirement under Schedule 13 to the Wildlife and Countryside Act 1981. Schedule 13 currently refers only to the Countryside Agency's functions under the 1949 Act, the Countryside Act 1968 and the 1981 Act. We therefore propose to bring forward an amendment to ensure that the agency's functions under this Bill are also covered. The Countryside Council for Wales must produce an annual report under Schedule 6 to the Environmental Protection Act 1990. This report relates to all the functions of the council and will include its functions under this Bill.
  Amendment No. 147 is similar to an amendment tabled in Committee. It would require access authorities to publish an assessment of the use that they have made of their powers under Part I of the Bill. We explained in Committee that it is neither necessary nor desirable to require authorities to produce yet another statutory assessment of their powers. Local authorities have a range of powers covering the whole spectrum of their responsibilities which they may use to assist them in fulfilling their functions. We expect them to assess and make good use of their new powers under Part I of this Bill, just as they do in relation to other powers. As with the majority of their powers, there is no need for a special statutory duty to be imposed to require such an assessment.
  The proposed duty in this amendment is not dissimilar to the duty in Part II to prepare and publish rights of way improvement plans. However, as my noble friend Lord McIntosh explained in Committee, local highway authorities have specific duties to carry out in relation to rights of way which are far more self-contained than powers relating to access land. The functions of access authorities in relation to access must be seen as part of a broader picture in conjunction with the functions of the countryside bodies and, in particular, with those of the relevant authorities. For example, the relevant authorities have
  1512
  an important role to play in access through exclusions and restrictions that will provide much of the basis for the exercise of the functions of access authorities to make by-laws and appoint wardens. We stress that access authorities should make careful use of their new powers under the Bill. They need to be able to be responsive to situations as they arise and not be bound by a statutory plan.
  The noble Earl, Lord Peel, said that it is important for us to look carefully at such issues. We believe that scrutiny is extremely important and that local access forums will be able to play a key role in reviewing the use that the authority is making of its powers. We also believe that that is the best approach to ensuring that all local authorities properly exercise their powers. I hope that the noble Baroness will not press the amendment.
  Baroness Byford: My Lords, before the noble Baroness sits down I wish to clarify a point. I thought I heard her say that the Government would consider the amendment further and might bring back a measure at a later stage. Did I mishear the noble Baroness?
  1 a.m.
  Baroness Farrington of Ribbleton: My Lords, I said that the annual report which is required under Schedule 13 to the Wildlife and Countryside Act 1981 specifies those functions which must be referred to in the report. I undertook to bring forward an amendment to add the provisions of this legislation to that specification.
  Baroness Byford: My Lords, I am grateful for those comments. I thank the noble Baroness for that clarification and for saying that the Government will consider whether some measures need to be added to those that are required to be mentioned in the annual report. However, I am slightly surprised that the Government do not think it a good idea every so often—in addition to the annual report—to review the framework on which the Bill is based.
  Baroness Farrington of Ribbleton: My Lords, we do not believe that it is right to lay down in legislation the rationale for strategic planning in that context. We believe that there will be full and essential monitoring through the annual report. However, in saying that, we do not preclude the body we are discussing from making a judgment in this context. However, we and the public will be kept fully informed through the annual report.
  Baroness Byford: My Lords, I shall read what the noble Baroness has said. I have no argument with what she has said. All I sought to indicate was that one usually reviews the operation of whatever business or organisation one is involved in. As I say, I shall read Hansard carefully tomorrow morning. Again I thank the noble Baroness for indicating that the Government may seek to add further provisions in this area. At this stage I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 147 not moved.]
  Clause 41 [Orders and regulations under Part I]:
  Lord Whitty Lord Whitty moved Amendments Nos. 148 and 149:
  Page 25, line 11, leave out from beginning to ("has") in line 12 and insert—
  ("(3) No order under section 3 or regulations under paragraph 3 of Schedule 2 shall be made by the Secretary of State unless a draft").
  Page 25, line 15, after ("any") insert ("other").
  On Question, amendments agreed to.
  Clause 42 [Interpretation of Part I]:
  Lord Whitty Lord Whitty moved Amendment No. 150:
  Page 26, line 1, leave out (" 1(2)") and insert (" 1(3)").
  On Question, amendment agreed to.
  Schedule 4 [Minor and consequential amendments relating to Part I]:
  [Amendment No. 151 not moved.]
  Clause 45 [Restricted byway rights]:
  Lord Whitty Lord Whitty moved Amendment No. 152:
  Page 27, line 34, at end insert—
  ("(8A) The powers conferred by section 92(5) must be so exercised as to secure that nothing in section 44 or this section affects the operation of section 53 or 54 of, or Schedule 14 or 15 to, the 1981 Act in relation to—

  (a) a relevant order made before the commencement of section 44, or

  (b) an application made before that commencement for a relevant order.

  (8B) In subsection (8A) "relevant order" means an order which relates to a way shown in a definitive map and statement as a road used as a public path and which—

  (a) is made under section 53 of the 1981 Act and contains modifications relating to that way by virtue of subsection (3)(c)(ii) of that section, or

  (b) is made under section 54 of the 1981 Act.").

  The noble Lord said: My Lords, in moving Amendment No. 152 I wish to speak also to Amendment No. 153. This is a significant point in that we now finally move to Part II.
  Amendment No. 152 relates to the transitional period between enactment of the Bill and the commencement of Clause 44 by orders made by the Secretary of State or the National Assembly for Wales under Clause 92. On commencement of Clause 44, restricted byway rights will be created over each way shown on a definitive map as a road used as a public path (RUPP).
  The rights attached to RUPPs are uncertain and local highway authorities are presently required to research each one and to reclassify it as a footpath, bridleway or byway open to all traffic. That obligation will cease when Clause 44 takes effect. Until then, authorities must continue to research their RUPPs and anyone with new evidence of the status of such ways will continue to be able to apply to their local authority for an order modifying the definitive map accordingly.
  Amendment No. 152 would require that such orders, and applications for them, which are made before commencement of Clause 44 but which have not taken effect should be processed to a final determination.
  Amendment No. 153 relates to the provision in Clause 46 whereby each road used as a public path over which restricted byway rights are created is to become maintainable at the public expense. It is our intention that private liabilities, for example liabilities of the private landowner, to maintain a RUPP, which is in fact a footpath or bridleway, should be extinguished. We believe it necessary to clarify that because the creation of a public liability to maintain a highway does not necessarily extinguish a private liability. Concurrent public and private maintenance liabilities are not uncommon.
  The express provision in Amendment No. 153 would apply only to those RUPPs which are footpaths or bridleways because new rights will be created over them by the Bill. The amendment would not apply to RUPPs which carry full vehicular rights because no additional rights will be created over them and there is no reason why these should be treated any differently from RUPPs which have been reclassified as byways open to all traffic after a case by case investigation under current legislation. I beg to move.
  Baroness Miller of Chilthorne Domer: My Lords, both amendments seem to be helpful and streamline the process. We welcome them.
  On Question, amendment agreed to.
  Clause 46 [Provisions supplementary to ss. 44 and 45]:
  Lord Whitty Lord Whitty moved Amendment No. 153:
  Clause 46, page 28, line 5, at end insert—
  ("(1A) As from the commencement of that section, any liability, under a special enactment (within the meaning of the Highways Act 1980) or by reason of tenure, enclosure or prescription, to maintain, otherwise than as a highway maintainable at the public expense, a restricted byway to which subsection (1) applies is extinguished.").
  On Question, amendment agreed to.
  Schedule 5 [Definitive maps and statements and restricted byways]:
  Lord Rotherwick Lord Rotherwick moved Amendment No. 154:
  Schedule 5, page 68, line 33, at end insert—
  ("( ) In subsection (2)(a) for "as appear to them to be" there is substituted "as are".
  ( ) In subsection (2)(b) for "as appear to them to be" there is substituted "as are".")
  The noble Lord said: My Lords, in moving the amendment, I speak to Amendments Nos. 156 to 158, 160, 161, 169, 170 and 171. I have already declared an interest as a landowner and manager.
  The proposed change of wording would have the effect of reinforcing the fact that the highways authority's function is to record that a public right of way exists, not to carry out a judicial function and attempt to create a public right of way which does not exist, without compensation to the owner.
  Amendment No. 156 introduces the new Section 53(3)(b). A declaration by a court or other independent tribunal established by law for the purpose would mean that the decision as to whether there is a public right of way in existence would have to be made by a properly constituted, competent and independent tribunal, thereby taking county councillors and the Secretary of State out of the equation. The House of Lords debate on 9th October focused on the possibility of creating a completely independent environmental court that would comply with the Convention on Human Rights in order to adjudicate rights of way disputes. This concept was also advanced by the DETR's report into the working of the planning inspectorate. The determination of rights of way disputes differs considerably from other environmental matters, as it concerns the civil rights and the public rights of citizens, not regulations of planning control.
  The proposed new Section 53(3)(b) would ensure that just decisions are reached on the evidence available—not by continuing to show as rights of ways those which are private but which because of the lack of notification of claims under the National Parks and Access to the Countryside Act to the landowner were included on the definitive map and statement without his knowledge. Until relatively recently it was impossible to remove a right of way from the map. Under the Wildlife and Countryside Act the burden of proof that the landowner must satisfy in order to have a right of way expunged from the map is unrealistic and unfair.
  The proposed new Section 53(3)(c) is unobjectionable, as it would make it expressly clear that the use by the public of an erroneously recorded right of way does not count or give rise to a presumption of dedication to operate. Clearly, during that period the landowner would be prevented by the operation of the law from blocking the right of way. It would therefore be unjust to allow the period to count towards any presumption.
  Amendments Nos. 157 and 158 are needed for consistency. They are substantially the same as Amendment No. 154 and would remove the discretion given to county councils on whether to record a public right of way on a definitive map and statement. Words such as "in the opinion of the authority" or "as appears to them" often appear in statute. Given the certainty of Amendment No. 156, there is no need to give the county council discretion on whether to record them. It must record if an event specified in Amendment No. 156 has occurred. Replacing the words,
  "as appear to them to be",
  with "as are" in Section 53(2)(a) and (b) would replace a subjective test with an objective one.
  Amendment No. 160 to paragraph 3(1)(b) of Schedule 14 would provide much-needed consultation with the owner of the land before an application was processed by the public authority. There is no current
  1516
  provision for the owner of the land to be consulted before a modification order is made. That is a serious lapse in basic human rights.
  The amendments to Schedule 15 to the 1981 Act made by Amendment No. 161 reflect the fact that the function of the Secretary of State is confined to resolving appeals on the accuracy of the recording by the public authority, not ruling on the correctness of a decision on whether a right of way exists. That function will pertain to an independent tribunal.
  New Section 11(1)(c) reflects the need for reasons to be given for executive decisions to verify their correctness. Again, there is no current requirement for the Secretary of State to give reasons for his decisions. That is particularly important when there is a statutory appeal to the High Court solely on points of law that can be manifest only if a fully reasoned decision is given.
  Amendments Nos. 169 and 170 to Section 31 of the Highways Act 1980 would remedy the unfair treatment meted out to the landowner by the interpretations of that section. Too many spurious claims have been passed as good because the public authority, the Secretary of State and finally the courts rely on antiquated legislation that had its roots in common law but that has so deviated from it that it has become no more than a pretence to open up private ways.
  The landowner generally has no defence against such claims which more often than not are brought about many years after a supposed dedicator is dead and buried. While the word of the claimant is usually accepted at face value, the landowner once again has an enormous burden of proof to discharge. Even if he has never seen anybody and there has therefore been no need to erect notices, he is still presumed to have dedicated and his word is disbelieved. That gives rise to many abuses. Some sense should be restored to the provision, in line with the original common law from which it derives. Nowadays the intention of the owner counts for very little. Acts of kindness and generosity are by law taken as generating a legal obligation. The trespasser acquires rights, even he knew that he was committing a wrong in the first place.
  I turn to Amendment No. 171. New subsection (12) is aimed at putting a stop to claims which, in order to succeed, are delayed before being made. Having carried out all the necessary searches that do not reveal a right of way, a new owner might later be faced with a claim that he cannot defend as it relates to a period in which he was not responsible for the land. Limiting the period in which a claim may be brought will safeguard as far as possible a landowner insofar as the memories of the relevant persons are still relatively recent. I beg to move.
  1.15 a.m.
  Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord, Lord Rotherwick, for explaining the amendments. I shall try to deal with them in turn as closely as I can, although they do not quite work out that way.

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  They all relate to Section 53 of and Schedules 14 and 15 to the Wildlife and Countryside Act 1981. Section 53 requires surveying authorities to keep their definitive maps and statements under continuous review and to make such modification orders as appear to them requisite on the occurrence of particular events, such as the creation of a footpath or bridleway through deemed dedication or the discovery of evidence which shows how a right of way that has already been recorded should be changed.
  Amendments Nos. 169, 170 and 171 to Schedule 6 to the Bill relate to Section 31 of the Highways Act. That section is concerned with the creation of highways through deemed dedication. We do not believe that this group of amendments is desirable.
  Amendment No. 154, which is linked to Amendment No. 156, would amend Section 53(2) of the Wildlife and Countryside Act to enforce the notion that a surveying authority is to make orders only as a consequence, or "as are" requisite in consequence, of legal events or declarations of a court or a tribunal. The discretion of what order can be made is narrowed and a surveying authority would be able to respond accordingly only to a declaration of a court.
  We do not believe that it would be at all desirable to remove the duties in question from the local authorities. They are part of local government's wider responsibilities for rights of way; for example, the creation, diversion, closure and maintenance of rights of way which, together with the new functions provided in the Bill, provide a comprehensive legislative basis for improving our rights of way.
  Moreover, the current legislation, broadly modelled on legislation introduced in 1949, provides the public with what is generally a relatively cheap and accessible way of modifying the definitive map. Amendment No. 156 would replace it with a procedure which would be more expensive, inaccessible and intimidating, and would undermine the objective of the legislation on definitive maps which is to compile as complete and accurate a record of public rights of way as possible. That aim is all the more important given the provisions in the Bill about the cut-off date and unrecorded rights of way.
  A consequence of the amendments is that the cut-off date provisions would need to be completely rethought as they are based on the fundamental assumption of surveying authorities being free to make appropriate modification orders and people being able to apply for such orders.
  Amendment No. 156 would remove from surveying authorities the duty and, indeed, the power to make modification orders because of the events in Sections 53(3)(b) and (c) of the 1981 Act. In particular, they would no longer be able to make modification orders on their own volition on the basis of a footpath or bridleway being created by deemed dedication or on the discovery of evidence which showed that the definitive map should be modified, for example, to show a new right of way, or that the status of a right of way already shown should be altered. Instead, modification orders other than legal event orders
  1518
  could be made only where a court or other independent tribunal established by law had made an appropriate declaration; for example, to the effect that a highway shown in a map and statement should be shown as a highway of another description.
  Amendment No. 156 also seeks to insert a new subsection (3A) into Section 53 of the Wildlife and Countryside Act. It aims to prevent the possibility of use of a way wrongly recorded on a definitive map and statement as a public right of way, giving rise to a presumption of dedication or acceptance by the landowner of the way as a public right of way.
  We are not entirely clear about the need for this amendment. Dedication of a highway rests on the assumption, or the presumption, of acquiescence on the part of the landowner to the creation of a highway. This notion sits inconsistently with the conclusive effect of the definitive map contained in Section 56 of the 1981 Act because that prevents the landowner from acquiescing, from preventing, particular use of a way on his land. In other words, if a way has been wrongly recorded on a definitive map as a highway, we do not believe that use by the public during that period can create a presumption that the public have a right of way over it. I understand from what the noble Lord, Lord Rotherwick, said that he views Amendments Nos. 157, 158 and 166 as consequential.
  Amendment No. 160 would amend Schedule 14 to the Wildlife and Countryside Act 1981. It would have the effect of requiring local authorities to consult landowners on applications for definitive map modification orders before they determine them. We do not believe that additional burden on local authorities to be necessary to safeguard a landowner's interests. Applicants for definitive map orders are already required to give notice to every owner and occupier of any land to which the application relates. Surveying authorities are obliged to take into account any comments made in response to such a notice; otherwise the obligation to serve such notice would appear to serve no purpose. In addition, if a surveying authority makes an order, it too is required to give notice to such owners and occupiers and to advertise the fact that an order has been made before it can be confirmed
  At this stage landowners and any other interested party have at least 42 days to make their views known. If there are any objections the order goes to the Secretary of State to confirm, after a hearing or public inquiry where again a landowner has an opportunity to inform the decision which is made.
  Amendment No. 161 relates to Schedule 15 to the Wildlife and Countryside Act 1981 which sets out the procedure for the confirmation of definitive map modification orders. It would remove the duty on the Secretary of State to hold inquiries (as opposed to hearings) into opposed orders. It would also expressly require him to set out, in writing, the reasoning behind final decisions on whether to confirm an order and make his reasons available to the public. In fact, he already does so. Decision letters are sent to those who have objected or given evidence on their own behalf and to anyone who asks for one.

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  Amendment No. 170 would strike at the very heart of deemed dedication under Section 31 of the Highways Act 1980. It would remove the practical possibility of Section 31 creating a highway through deemed dedication. Broadly speaking, deemed dedication operates because, in the absence of sufficient evidence to the contrary, you must infer an intention to dedicate a highway on 20 years long use—dedication has to be presumed. The amendment defines as sufficient evidence to rebut the presumption a statement by the landowner that during the relevant years he did not intend to dedicate a right of way to the public at large. Such a statement will be challengeable only on the basis of overt acts on the part of the landowner which are inconsistent with lack on intention to dedicate.
  It is the case that deemed dedication operates because the landowner is not entitled to argue that locked away in his or her mind was the thought that he did not intend to dedicate land as a highway. He must adduce some evidence of an overt act such as to show to the public that he had no intention to dedicate. That is a key element of the principle of deemed dedication first introduced in the Rights of Way Act 1932 and carried forward by Section 31 of the Highways Act.
  If the landowner is concerned about the issue of public use of a way on his land he has many methods available to him to stop time running, to stop the presumption arising. He can erect appropriate signs; deposit the appropriate documents. He can tell the public that they have no right to be on his land; he can close the path off for one day a year; or he can erect gates.
  We have made it clear during debates that the Government are not prepared to agree to anything which would undermine the basis of deemed dedication.
  Amendment No. 171 is broadly similar to a proposal in the Government's consultation paper on rights of way which suggested that applications to add a right of way to a definitive map on the basis of 20 years' use should be made within five years of the use being brought into question. The intention was to help streamline the process, but further research indicated that the vast majority of claims are already made within five years. On the other hand, it became clear that a statutory deadline for claims would generate greater dispute in cases where there had been a series of challenges and the landowner argued that a claim was out of time.
  At best, therefore, the proposal would produce few benefits; at worst it would make the current system more complicated. Any disputes over the date of the challenge would have to be resolved before the substance of the claim could be investigated and more decisions would be likely to be challenged in the courts. We believe those to be good reasons for not proceeding with the proposal and for the same reasons
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  we are unwilling to accept Amendment No. 171. I hope that the noble Lord, Lord Rotherwick, will not press the amendments.
  Lord Rotherwick: My Lords, I thank the Minister for his detailed reply at this late hour. Obviously I am disappointed at his earlier replies that these provisions were not desirable. However, I am a little less disappointed with his last reply. I look forward to reading his detailed reply in Hansard. I am not sure whether it will be included tomorrow; it will probably be the day after. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 155:
  Page 68, line 38, at end insert—
  ("(4A) In subsection (4), after "public path" there is inserted", restricted byway".")
  The noble Baroness said: My Lords, in moving Amendment No. 155 I shall speak also to Amendments Nos. 174, 180, 190 and 199. This group of amendments would correct a small number of minor errors in the Bill.
  Amendment No. 155 relates to Schedule 5 to the Bill. Among other things, Schedule 5 makes a number of consequential amendments to the Wildlife and Countryside Act 1981 to take account of the creation of restricted byways as a new category of right of way. The amendment would add "restricted byway" to Section 53(4) of the 1981 Act which provides that an order modifying a definitive map may include the addition to the statement of particulars of the position and width of a right of way and any conditions or limitations affecting the public right of way over it. Section 53(4) does not currently cover restricted byways.
  Amendment No. 174 to Schedule 6 to the Bill relates to a new Section 119B of the Highways Act 1980 which enables a right of way to be diverted to prevent crime or to increase school security. New Section 119B(4) empowers a local highway authority to create such new right of way as is requisite for effecting the diversion and to extinguish as much of the existing highway as is requisite as mentioned in Section 119B(1) (the purposes for which diversions may be made). However, Section 119B(1) does not use the term "requisite". The amendment would therefore replace this term in Section 119B(4) with the words "for the purpose or'. That is consistent with the parallel provisions in new Section 119D(3)(b) relating to SSSI diversions.
  Amendment No. 180 to Schedule 6 relates to consequential amendments to Section 329 of the Highways Act 1980 which defines various terms used in that Act. The amendment would correct an error whereby the definition of school for the purposes of the Bill was inserted in the wrong alphabetical order in Section 329(1).
  Amendment No. 190 relates to Clause 60. This enables a member of the public to serve notice on a local highway if a right of way is obstructed. The

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  amendment would clarify the intention that Clause 60 should not apply to obstructions which consist of disrepair of a highway such as vegetation growing out of the surface. Section 56 of the Highways Act 1980 already provides a means of enforcing the relevant duties. However, the exclusion in the Bill currently applies only to orders made by the magistrates' court under Section 56(4). Orders may also be made by the Crown Court under Section 56(2). Amendment No. 190 would ensure that the exclusion applies to those orders as well.
  Amendment No. 199 relates to Clause 67 which defines various terms for the purposes of Part II of the Bill. The amendment would qualify Clause 67 to ensure that the interpretation provision will not apply where a contrary intention appears. That is consistent with the approach taken in Clause 42 to the interpretation of terms used in Part I. I beg to move.
  On Question, amendment agreed to.
  [Amendments Nos. 156 to 158 not moved.]
  1.30 a.m.
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 159:
  Schedule 5, page 73, line 7, at end insert—
  ("(1A) In subsection (1), the words "on such scale as may be so prescribed," are omitted.
  (1B) In subsection (2), for "section 55(3)" there is substituted "subsection (1) or any other provision of this Part".").
  The noble Baroness said: My Lords, in moving Amendment No. 159, I shall speak also to Amendments Nos. 162, 163 and 260.
  Amendment No. 159 is a technical amendment which would extend to all definitive maps made under Part III of the Wildlife and Countryside Act 1981 the current power for the Secretary of State or the National Assembly for Wales to make regulations prescribing the scale on which maps prepared under Section 55(3) of the 1981 Act should be drawn. Section 55(3) relates only to maps prepared for areas for which no survey under the National Parks and Access to the Countryside Act 1949 was begun or where any such survey was abandoned. The objective of the amendment is to facilitate, in particular, implementation of new Section 57A which is inserted into the 1981 Act by Schedule 5 to the Bill. This enables local authorities to consolidate their definitive maps following, for example, local government boundary changes. Amendment No. 260 is consequential.
  Amendments Nos. 162 and 163 arise from an undertaking we gave in Committee to consider amendments tabled by the noble Baronesses, Lady Miller, Lady Hamwee and Lady Scott, aimed at filtering out irrelevant objections to orders modifying definitive maps. We recognise problems in the current legislation which arise from the effect of the Lasham Parish case. There is no obligation on a person objecting to a definitive map order to specify the grounds of his objection, or for those grounds, if specified, to be legally relevant.
  The purpose of a definitive map is to provide an accurate record of public rights of way. Decisions on definitive map orders are a matter of fact and law and do not call for judgments to be made on whether, for example, the recording of a footpath or bridleway on a definitive map would cause environmental damage. However, Schedule 15 to the Wildlife and Countryside Act 1981 requires the Secretary of State or the National Assembly for Wales to hold a public inquiry or hearing into any opposed definitive map order even if the only objections are ones which are not material to the decision on whether or not to confirm the order.
  The amendment tabled by the noble Baroness, Lady Miller of Chilthorne Domer, during Committee, would have required the grounds on which objections were made to be specified. It would also have enabled the local authority which made the order to disregard any objection which it considered incapable of affecting a decision on whether or not to confirm the order.
  The Government agree on the need for a change in the current law. However, as we explained during Committee, we do not believe that the decision on whether or not an objection is relevant should be taken by the authority which made the order. Amendment No. 163 would therefore leave the decision to the Secretary of State or the National Assembly for Wales.
  The amendment would require that any objection or representation in respect of a definitive map modification order should include particulars of the grounds on which the objection or representation is made. It would also empower the Secretary of State or the National Assembly for Wales to decline to hold an inquiry or hearing into an opposed order if he (or it) considered that the only objections or representations which have been made and not withdrawn are not relevant to a decision on whether or not to confirm an order.
  Amendment No. 163 would apply not only to objections made to a local authority's order, but also to objections made to proposals by the Secretary of State or the National Assembly for Wales to confirm an order with modifications of a kind which require the proposals to be advertised and a further inquiry held if they are opposed. Amendment No. 162 is consequential on Amendment No. 163. I beg to move.
  Baroness Miller of Chilthorne Domer: My Lords, I thank the Government for coming back with Amendment No. 163 in response to the concerns we voiced in Committee. Although it is different from the amendment we tabled on that occasion, we believe that it will cut out the objections and representations which serve merely to expend more public time and money. They were irrelevant but, under the old process, nevertheless had to be heard. We are pleased with the development.
  On Question, amendment agreed to.
  [Amendments Nos. 160 and 161 not moved.]
  Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendments Nos. 162 and 163:

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  Schedule 5, page 74, line 31, leave out ("In").
  Schedule 5, page 74, line 31, at end insert ("is amended as follows.
  (2) In paragraph 3, in sub-paragraph (1)(c) after "order" there is inserted ", which must include particulars of the grounds relied on,".
  (3) In sub-paragraph (9) of that paragraph—

  (a) after "sub-paragraph" there is inserted "(1)(c) or". and

  (b) after "limiting" there is inserted "the grounds which may be relied on or".

  (4) In paragraph 7, in sub-paragraph (2) after "shall" there is inserted ", subject to sub-paragraph (2A),".
  (5) After sub-paragraph (2) of that paragraph there is inserted—
  "(2A) The Secretary of State may, but need not, act as mentioned in sub-paragraph (2)(a) or (b) if, in his opinion, no representation or objection which has been duly made and not withdrawn relates to an issue which would be relevant in determining whether or not to confirm the order, either with or without modifications."
  (6) In sub-paragraph (3) of that paragraph, for "the person appointed to hold the inquiry" there is substituted "any person appointed to hold an inquiry".
  (7) In paragraph 8—

  (a) in sub-paragraph (2)(a) after "the proposal" there is inserted ", which must include particulars of the grounds relied on,",

  1524

  (b) for sub-paragraph (2)(b) and (c) there is substituted—

  "(b) if any representation or objection duly made is not withdrawn (but subject to sub-paragraph (3)), hold a local inquiry or afford any person by whom any such representation or objection has been made an opportunity of being heard by a person appointed by the Secretary of State for the purpose; and
  (c) consider the report of any person appointed to hold an inquiry or to hear representations or objections.
  (3) The Secretary of State may, but need not, act as mentioned in sub-paragraph (2)(b) if, in his opinion, no representation or objection which has been duly made and not withdrawn relates to an issue which would be relevant in determining whether or not to confirm the order in accordance with his proposal.
  (4) Sub-paragraph (2)(a) shall not be construed as limiting the grounds which may be relied on at any local inquiry or hearing held under this paragraph."
  (8)").
  On Question, amendments agreed to.
  Lord McIntosh of Haringey: My Lords, I beg to move that further consideration on Report be now adjourned.
  Moved accordingly, and, on Question, Motion agreed to.
  House adjourned at twenty-four minutes before two o'clock.