§ (" .—(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 moved Amendment No. 146:
After Clause 38, insert the following new clause—